Support for this episode comes from Lawyers Mutual Insurance Company, who have proudly
provided California attorneys with specialized professional liability coverage for over 45
years.
And did you know? Lawyers Mutual offers competitive specialty rates for their members who act
as a neutral, either on a full-time or part-time basis.
So, as part of their arbitration mediation specialty program, all members receive an
individualized premium based on the areas of practice their firm handles.
This allows Lawyers Mutual to adjust rates annually, and as you build your mediation
practice, your premium will reflect the portion of your time spent working as a neutral.
To learn more about how this great program can benefit your firm, visit LawyersMutual.com
today.
Welcome to the audio edition of BHBA's Mediation Training. In this episode, your host, the
honorable Delilah C. Lyons of Signature Resolution, will guide you through types of disputes and
traditional processing. Let's dive in.
This is the session on types of disputes and traditional processes. Welcome. I am Judge
Delilah Corral Lyons. It would be my pleasure to go through this session with you.
Let me give you first a little background on myself. I was a judge with Los Angeles Superior
Court for 18 years, and I retired in May of 2023. I presided over criminal and civil cases.
My last eight years on the bench, I was in a civil, unlimited jurisdiction court room
at the Stanley Monace Courthouse downtown Los Angeles. My last three years on the bench,
I conducted mandatory settlement conferences full time. In fact, I did two of those a day,
one in the morning and one in the afternoon. While on the bench, I had the pleasure of
teaching new judges, and I was also the chair of the court's new judges educational program.
Prior to my appointment to the bench, I was a civil litigator. I work with Los Angeles
Office of the County Council, and I also work with two business litigation law firms and
our entertainment law firm. I'm now a mediator with Signature Resolution.
Let me give you now an overview of what we are going to do in the next two hours. This
is a two hour session, and these are the topics we're going to cover. I will first provide
a brief overview of the structure of the California Just Assist. Then I will give an overview
of the alternative dispute resolution programs, particularly those in Los Angeles Superior
Court. I will also discuss the methods of processing civil and criminal cases, and this
is where my background in both civil and criminal cases as a judge will become handy. Next,
I will discuss the most common disputes in alternative dispute resolutions, where you
may see these topics, disputes most often. Those disputes include landlord-tenant, customer-mergent
disputes, neighbor-to-neighbor disputes, personal injury, business disputes, and employment disputes.
And finally, I will provide tips and strategies for effective mediations.
Let's now start with the overview of the courts in California. Under the leadership of the
Chief Justice of the Supreme Court, the Judicial Council is the policymaking body of the California
courts, which is the largest court in the nation. The California court system serves
a population of more than 39 million people, which is about 12 percent of the total of
the U.S. population. The California state has two types of courts, as you know, the
trial courts and the appellate courts. The vast majority of the cases in California
courts begin in one of the 58 trial courts, which reside in each of the 58 counties in
the state. With approximately 450 court buildings throughout the state, the courts hear both
criminal and civil cases, as well as family, probate, mental health, juvenile, and traffic
cases. Now, the next level of judicial authority resides with the court of appeal. Most cases
before the courts of appeal involve the review of the superior court decisions. There are
six appellate districts in California, and finally, we have the state supreme court that
serves as the highest court in the state and has the discretion to review decisions of
the courts of appeal in order to settle important questions of law and to resolve conflicts
among the courts of appeal. Now, let's look at the Los Angeles Superior Court. Los Angeles
Superior Court is the second, is in the second appellate district. The other superior courts
in the second district are San Luis Obispo, Santa Barbara, and Ventura. As you can see
from the graphic here, the graphic has the information as to the judges and the supported
judicial officers and the full-time employees for these particular courts. Now, let's look
a little closer at Los Angeles Superior Court. It is the largest in the nation. It is one
of 58 superior courts in California. It serves an area of within 88 cities and 140 unincorporated
areas in the county of Los Angeles. Now, the court of Los Angeles serves a population
of over 10 million people, and it includes 37 courthouses, depending on which ones are
closed or open, reopen, and they are located in 12 judicial districts throughout the county's
4,752 square miles. Now, there are about 580 judicial officers and over 4,800 employees
in the Los Angeles Superior Court. The judicial officers in the court hear every case type
of under-the-state law, criminal, civil, family, juvenile, dependency, probate traffic, and
everything in between. Now, I'm going to give you now some brief overview of the statistics
of the court, and this is from fiscal year 2021 to 2022. They were civil filings, totally,
for unlimited cases of 67,199. And for civil limited filings, these were filings that were
made in the Los Angeles Superior Court, not including the evictions of 77,257 cases. And
for small claims, or other civil is 22,273 cases, and for UDs and evictions, 20,305.
This is again for the fiscal year 2021 to 2022. Now, let's look now at the statewide
statistics very briefly, because there's a lot of statistics, and I'm not going to bore
you with a lot of them, but I'm just going to pick a couple of them. Let's now look at
the, a couple of statistics that are provided in the statewide case law trends. This is
the Judicial Council's 2024 Court Statistics Report. And this is a report that is published
annually by the Judicial Council of California, and it is designed to fulfill the provisions
of the California Constitution, which requires the Judicial Council to survey the condition
and the business of the California courts. The court statistics report combines about
10 years statewide summaries of Superior Court filings and dispositions. So if you ever are
bored and you want to see what other counties, what the statistics are for filings or dispositions
of cases, this is your report to go to. The 2024 Court Statistics Report also provides
more detailed information on filings and dispositions in the individual Superior Courts for the most
recent fiscal year. And in this case, the data is for 2022 to 2023. So let's look at a couple
of them just very briefly. So what does this report say about what states, at what state
I'm sorry, do the unlimited civil cases get resolved? Again, this is for unlimited civil
cases. It's very interesting that they have the statistics for the entire state. At what
state do they get resolved? Which means at what state will you mostly be doing mediations
or other alternative dispute resolution processes? So the resolution of a case may occur, of
course, at any time in the stage of a case. However, generally, resolution generally occurs
after some discovery is conducted and before the trial. Now, sometimes ADR occurs even
before a formal court filing. This will have to be with private mediation as opposed to
with the court, but the ADR is often used in pre-filing cases. Now, pursuant to the
Judicial Council Statistics report, again for 2022-2023, 80% of the cases of unlimited civil
cases get resolved before the trial and 20% after the trial. Now, this is again statewide
and of those 80% constitute 86,902 cases that were resolved prior to the trial and after
the trial 21,520. Now, a total of 255,914 cases of unlimited civil cases were filed in
the court statewide for the fiscal year 2022-23. Now, let's look at one more interesting statistics
of what state did most limited cases get resolved and pursuant to this report. This is interesting.
The entire chart is almost all blue, the blue section being that that is 99% of the limited
civil cases statewide were resolved before the trial. That's pretty amazing, 99%. And
before trial, there was just 1%. I'm sorry, and after trial, there was only 1%. So this
is probably not surprising to most people. Again, this is in the statistic report, if
any of you want to look at it. What about UD cases, lawful detainer cases? What stage
do they most recoup resolved? Well, according to this report, 86% were disposed before trial
and 14% were disposed after trial. Now, of that 90% of the 1% disposed after trial or
2%, 99% were by court trial and 1% were by jury trial. Here's another informational
chart which I will not review in detail. It's in your material, so you can review it later
if you're interested. I'll just point out one stat at the very top of the chart is
your fiscal year 2023. The report divided the total filings into the authorized judicial
position statewide and the total filings per judicial position or floor 2248. This is per
judicial position in the state. So each judicial officer, if you were to buy them, would have
that many cases. Now, here's my last fascinating chart to share with you, which is analyzing
the processing time of civil unlimited cases, limited cases, UDs, and small claims. So this
is very interesting in that it analyzed the time it took to process these types of cases.
Again, this is statewide. So for example, just share one of the statistics here. It took
in less than 24 months, as you can see, for the fiscal year 2023, 86% of the cases were
processed. So in less than that, you can look at this chart later because it has a lot of
helpful information. Now, let's end now with the stats and let's look at ADR now. Now,
let's talk about the benefits of ADR and which, as you know, are many. Number one is that
it saves time. A dispute often can be settled or decided much sooner in an ADR process than
in a trial. Often in a matter of months, you can decide the dispute with ADR. Sometimes
even weeks while bringing a lawsuit to trial can often take years, as you just learned
from the judicial counsel report, it takes a lot of time to process the cases through
the court system. Whereas with ADR, the disputes are resolved much faster than the conventional
trial process. The other benefit is that it saves money. When cases are resolved earlier
through ADR, the parties may save some of the money they would have spent on the attorney's
fees, court cost, extortion fees, and other litigation expenses and put it into a settlement.
It saves money not only for the litigant, but also for the judicial system in processing
the cases. Now, the other benefit is that ADR increases control over the process and
the outcome. In ADR, parties typically play a greater role in shaping both the process
and its outcome. In most ADR processes, parties have more opportunity to tell their story
than they do at a trial. Some ADR processes, such as amniotiation, allow the parties to
fashion creative solutions that are not available in a trial. Other ADR processes, such as arbitration,
allow the parties to choose an arbitrator in a particular field to decide the dispute.
So parties also have a greater influence over both the process and the outcome, allowing
for a more personalized storytelling and creative resolution that is not possible in trial.
Another benefit of ADR is that it preserves the relationships. ADR can be less adversarial
and less hostile way to resolve cases. For example, an experienced mediator can help
the parties effectively communicate their needs and the point of view for each other's
sides. This can be an important advantage where the parties have a relationship to preserve.
For example, they have a business relationship, they have a neighbor relationship, a family.
They want to preserve that relationship after the dispute has resolved. And an ADR officer
has a beautiful opportunity to do that because you can craft the resolution with the terms
and conditions that will preserve and maintain and even sometimes improve the relationship
between the litigants. Now, unlike trials, which focuses on deciding fault, who wins,
who loses, mediations focus on crafting customized solutions that both sides can live with without
deciding who's at fault. Another benefit is it increases satisfaction, client satisfaction.
In a trial, there is typically a winner and a loser. The loser is not likely to be happy
and even the winner may not be completely satisfied with the outcome. But you always
have a winner and a loser in a trial. I did many, many trials when I was in the court
and there's always a winner and a loser. ADR can help the parties find a win-win solution
and achieve their goals. Both parties compromise, both parties give in a little bit. They feel
that they got a little bit of what they wanted, maybe not exactly what they wanted, but they
feel satisfied and it includes the satisfaction level. Now, this may increase the party's
overall satisfaction with both the process and the outcome. And a final but not least
benefit of ADR is that it improves attorney-client relationships, frankly. I've seen many mediations
in which clients and the counsel, after the mediation result, is the case, they have an
improved relationship because they spend a lot of time crafting a very customized settlement.
So attorneys may also benefit from ADR by being seen as problem solvers rather than
combating and fighting each other. Quick, cost-effective and satisfying resolutions are
likely to produce happier clients and generate more repeat business for the attorneys. As
well as let's talk about what the impact is of ADR on the judicial system. ADR significantly
streamlines cases, resolutions and alleviates court backlogs by resolving disputes before
they reach to trial. So by diverting cases out of the traditional court processes, ADR
helps reduce wait times for the trial dates and decreases the judicial systems of burn.
And this is quite helpful as I just retired last year from the bench. We welcome mediators
who would volunteer to help us take care of the backlog in the court, which is a big one.
So overall ADR contributes to a more efficient legal process allowing the courts to focus
resources on cases that require formal judicial attention. The courts are still feeling the
effects of the COVID backlogs and ADR helps reduce this backlog and help ensure a prompt
access to justice, which is really the goal here. Everybody should have a prompt access
to justice, not just access but a prompt and access to justice and ADR is a significant
contributed to that goal. Now let's go over some of the ADR programs in the Los Angeles
Superior Court. I will discuss some of the programs in effect at this time, but they
may change from time to time. Different presiding judges may add or expand on one or contract
on another one, eliminate others, but these are some of the ADR programs currently in
effect in the court. First, what I'm going to talk about is the Dispute Resolution Program
Act, known as DRPA, Day of Hearing Mediation. Now through the Dispute Resolution Program
Act, the court works with county funded agencies through the Los Angeles County Department
of Consumer and Business Affairs and with the Center for Catholic Resolution and they
provide voluntary Day of Hearing Mediation Services for small claims, unlawful detainer,
limited civil and civil harassment matters. Now these two programs are staffed by trained
volunteers at service mediators, primarily for self-represented litigants. There is
no charge to the litigants and in 1986, the California Dispute Resolution Program Act
was signed into law. This is a little background of how this came into effect and this law
allows the counties to fund these ADR services from a portion of the filing fees collected
for the first papers in civil court's actions. So currently, nine agencies are contracted
with this program and fund to train and supervise mediators in Los Angeles County. Now these
mediators help provide to resolve the differences without the need of the additional cost of
time that may be required for a full formal court hearing. The next program we're going
to discuss is online dispute resolution, ODR. This is a free online service provided by
the court to help small claims and unlawful detainer litigants explore settlement options.
Now ODR guides parties through a step-by-step program and after both sides register for
the ODR, they may request assistance from trained mediators to help them reach an agreement.
The Los Angeles Superior Court developed a fillable settlement agreement form for the
UDs on the ODR program. This form was recently revised in 2021. If anybody is interested in
this form, it's LA Superior Court CIV 284. Now another program is the UD MSC pilot program.
In this program, temporary judges are trained as settlement officers and are assigned by
the court to forward unlawful detainer court locations on designated state each week to
facilitate settlement of unlawful detainer cases on the day of trial, which is when a
lot of the cases settled. For this program, cases may be ordered to participate in this
MSC by judicial officer Eddie, their the Stanley Moss Courthouse downtown LA, Long Beach Compton
or San Monica. Now settlement rooms and farms are available for the use of the designated
day at each courthouse location and there is no charge to the litigants or the UT MSC.
Another program is the Mediation Center for Los Angeles Referral Program. The court may
refer unlimited civil cases to mediation through a formal contract it has with the Mediation
Center of Los Angeles is a nonprofit organization that manages a panel of qualified mediators.
The cases must be referred to the program by a judicial officer and there are five participating
currently five participating judicial districts the North Central East, Southwest, Northwest
and North Valley. The courts ADR office will provide the parties with information for submitting
the case intake form for this program and this program has a designated fee schedule.
Okay, now let's talk about another program that is also very much dear to my heart. This
is the Resolve Law LA. I had the pleasure of training the volunteer attorneys who were
going to be judicial office settlement officers, not judicial officers in this program. So
let me first go over very briefly how this work has been a very successful program. I'm
very proud to have been involved in it at the beginning and training the officers. The
first one we started was with the personal injury. It was launched in June 2021 and the
parties in personal injury cases may be ordered to participate in this virtual mandatory settlement
conferences through Resolve Law LA. It has it on website. Please look at it from our
information and this program leverages the talent of the volunteer attorneys who act
as settlement officers to conduct virtual mandatory settlement conferences. They all
have gone to some training so make sure you look at their website. Now in later in January
of 2022, the program was expanded to employment case. So it was launched in January 2022. The
Early Resolution Employment Case Mandatory Settlement Conference pilot program, which
encourages resolution of employment cases are assigned to five independent calendar
courtrooms in the court central civil division at the Stalin-Maz courthouse. Judicial officers
in those courthouse or rooms identify and assigned appropriate cases to an early virtual
MSC to be conducted through Resolve Law LA. The program was intended to assist less complex
cases and avoid the expense of the delay and the protective litigation through early dispute
resolution and improve the speedy resolution of disputes between employers and employees.
Now these two Resolve Law LA virtual programs are a joint effort of the court, the Consumer
Attorneys Association of Los Angeles, the Association of Southern California Defense
Council, the Los Angeles chapter of the American Board of Trial Advocates, and the Beverly Hills
Bar Association. Now let's look now at the stats with a settlement rate for Resolve Law LA through
July 7, 2022. This is what was published and as you can see from the slide here in the employment
cases, 38% settle and 41% of the PI cases settled and this was published in the court's annual report.
Now let's continue with Los Angeles Superior Court ADR programs and these will be the last two
programs that I will discuss from the court. Next program is the Family Launches Daily Settlement
Officer Program. These are volunteer settlement conferences led by experienced family law attorneys
for various family law matters provided by Los Angeles County Bar Association and other
local bar associations at no charge to the litigant. Experienced family law attorneys serve as daily
settlement officers and provide voluntary settlement conferences for parties who appear
in family law matters in person or through a virtual platform at no charge. Judicial officers
identify and refer the appropriate cases to these officers to assist parties in reaching
agreements on support issues, property issues, attorney's fees and costs, discovery financial
issues that involve child custody, or case management issues. The settlement officer,
daily settlement officer also can help litigants and their counsel be prepared to officially proceed
with their hearing or trial when they appear before the court by enabling parties and councils to
meet and confer about case management, discovery issues that may or may not be an issue on the day
they are being referred. Now this is a voluntary based program provided by Los Angeles County Bar
Association and other local bar association. And last but not least, the court's probate
pro bono settlement program. The pro bono probate settlement program provides parties with an
opportunity to resolve cases and matters of probate, trust, states, guardianships or conservatorships.
Volunteer attorneys who are experienced practitioners and probate court matters serve as
volunteer settlement officers through the Sapernavalli Bar Association. The program
participation is by court referral only and may be requested by one or more of the parties.
And settlement conferences are held virtually and there again is no charge to them. So those
are all the ADA probes I'm going to discuss and that the least that are in the court.
Next, we're going to go over the civil cases. So I'm going to discuss now the types of civil
cases in civil court that you as mediators, alternative dispute officers may encounter.
Okay, there are several kinds of civil cases, UIC and the ADR process. Let's talk first
about generally about the general civil cases. The general civil cases are those in which the
alleged damages are over 25,000 and in fiscal year 2022 to 2023, there were 255,940 unlimited
civil cases filed in the courts statewide. Now, we also have the limited cases.
Limited cases are those where the alleged damages are under 25,000 and the limited cases
totaled 402,019 statewide for fiscal year 2022 to 2023. Then you also have family law cases. Those
are the divorce cases. They're also called dissolution of marriage, child support, and child
custody cases. Then you have juvenile cases. Cases about child abuse and neglect, juvenile
dependency cases, or when someone under 18 years of age breaks the law, it's a job to
justice property. And landlord tenant cases. These cases are about renting or leasing real
property. Civil cases involving the small claims, there's the other one, I'm sorry. And
those are civil cases that are 5,000 or less. And whereas you know, the parties represent themselves.
And probate cases. Cases dealing with taking care of people and their personal affairs,
for example, using a will or trust to transfer property after someone dies,
guardianship and conservice shirt for people who can't take care of themselves or handle their
own finances. Name changes, adoptions, or elder abuse. Now let's go over how a civil case is
processed. This is very elementary, but I think it's important to go over generally the process.
As you all know, the complaint or petitions filed in Superior Court is served on the defendant,
defendant files an answer or a response. Discovery is conducted. And you could either go to
dismissal or settlement and actually settlement or dismissal court could hurt any stage of this case.
And then after the discovery, you have to jury by judge or trial and then judgment and center.
That's the very skeletal processing of a civil case. And there's more details, but generally
that's where it's processed. And of course, the ADR may occur at any stage of that case,
even as before it is actually filed in court. Now let's go over who provides alternative dispute
resolution in civil cases. Of course, we have the courts, community organizations, as you just
heard from the programs I described, the court, it has a partnership with a lot of a community
agencies that provide ADR and of course, private companies like the one I'm curling with,
signature resolution and many other ones, private mediators, private individuals who also provide
ADR services. Let me discuss now the types of ADR in civil case. The types are, of course,
mediation, arbitration, and judicial mandatory settlement cards. Now let's look at each three
of them. Mediation. Mediation is where a neutral mediator listens to each of the party's concerns,
helps them evaluate the strengths and weaknesses of their case, and works with them to try to
create a settlement agreement that is acceptable to all parties. Mediators do not decide the outcome
of the case or the legal issues or factual disputes. They facilitate an agreement between
the parties. In private mediations, both sides agree to hire a neutral third party to act as the
mediator. Now, mediator may be appropriate where the parties want to work on a solution but need
help from a neutral or have communication problems or strong emotions that interfere with the
resolution. It's always good to have a neutral when those are the circumstances of the case
or where parties value an existing personal or personal relationship and they want to continue
that relationship. As I mentioned before, that's one of the benefits. The neutral may assist in that
as well. Litigation is stressful and may damage relationships. So, a mediator will work with
the parties to work out an agreement which will resolve the dispute and hopefully preserve the
relationship. That is one of the big benefits of having ADR as opposed to proceeding to try
Now, mediator mediations may not be appropriate when the parties want a public trial because
mediation is private. If somebody wants a public trial, they will have to have,
cannot, should not go to mediation or it may not be appropriate where they want a judge or a jury
to decide the outcome. Mediators, there's a lot of private retired judges like myself,
but they may, the individuals may prefer to have a jury and that's when you have to go to a trial.
And it may not be appropriate when there's unequal bargaining tower between the parties. You have a
pro per was not sophisticated versus a very sophisticated other party. So, those are the
circumstances where it may or may not be appropriate. Now, let's now look at arbitration.
Arbitration is a less formal than a trial, but like a trial, the parties present evidence and
arguments to the arbitrator who decides the outcome or makes a ruling on the case. In binding
arbitration, the arbitrar's decision is final. There is no right to trial. In non-binding arbitration,
the party may request trial after the arbitrator's decision. I call arbitrations very, very informal
court trials of which I did many when I was in the court. So, I enjoy the fact that they are
much less formal. The rules are very flexible and it's really by agreement of the parties.
Now, the last but not least type of ADR is mandatory settlement conferences, as you heard
from my prior slides. It's very dear to my heart because I did mandatory settlement conferences
for three years before I retire. Now, these are conferences that are ordered by the court
where the parties are ordered to appear at an MSC. The parties may request that the judge
order them, but there must be an order. And these are conducted by a judicial officer who tries to
help the parties come to a resolution. Again, although the judicial officer is a sitting officer
of the court, they do not make a decision, but instead they assist the parties in evaluating
the strengths and weaknesses of the case and in negotiating a settlement. These could be an entire
day view or half a day depending on the type of case. Now, we've looked at mediations and MSCs and
a lot of people are confused about what's really the difference. They kind of do the same thing and
there's big differences and a lot of similarities. Okay, now let's talk about the differences
between mediation and MSC. There's a lot of confusion because there's a lot of similarities
and there's also a lot of differences, but the differences are crucial and it's important. I'm
going to go over some of the key differences for you today. So mediation confidentiality is the big
difference and it is covered by evidence code 1119, which provides that one cannot, a court cannot
admit, a artist cannot disclose, or subject to discovery. Anything said or any admission or
writing, if prepared for the purpose of, in the course of, or pursuant to a mediation or a mediation
consultation. All communications negotiations set on the discussions by and between participants
in the course of the mediation or a mediation consultation shall remain confidential. As you
can see, this is a confidentiality rule that is very broad and there's a very robust area of the law
that provides statutes that govern confidentiality. Whereas in MSC, there is no mediation confidentiality.
MSC is governed by the evidence code 1152, which provides that an offer, offers of compromise,
as well as any conduct or statements made in negotiation, thereof, are inadmissible to prove
liability for the laws or damages. So as you can see, this is a evidence preclusion rule.
It is not a confidentiality rule. That's the difference, main difference and most important
difference in my view between the MSC and the private mediation. In fact, evidence code 1117
B2 specifically, very clearly, it simply provides that mediation confidentiality does not apply
to settlement conferences. I love this rule because it's clean and simple and yet there's no issue
of what it says. It simply says mediation confidentiality does not apply to settlement
conferences. So the only issues, the only ones that would be protected, matters will be under the
11th and code 52, which is the inadmissibility. Now a lot of people ask, well, is there a
particular confidentiality that you could agree to in MSC? Yes, but it has to be by stipulation.
Now, another similarity between the two is that both mediators and settlement judges
have immunity. They cannot testify as witnesses to any settlement, conduct, decision or ruling
or occurring at or in conjunction with the mediation or the MSC. That's in evidence code 703.5,
in evidence code 1121 governing mediators. Now, let's look at some of the differences here in
your slide. Mediations are voluntary. Parties have to agree. This at least private mediations are
voluntary. Parties have to agree. They select a mediator. Whereas MSC, they are ordered by the
court. So whether you want to or not, they're ordered sometimes. Now, another big difference is
the private mediations, of course, are for a fee. The parties have to pay a fee, the mediators fee.
MSCs, they're free. There's no fee. That's part of the court services provided. In mediations,
they're held in private offices. MSCs, usually in the courthouse or Zoom, if they're like in the
program, Brazil, LLA that I discussed, they're virtual. And another big difference is in mediation
briefs do not need to be shared with opposing counsel. They may be shared if the parties agree,
but they are not required to be exchanged with the opposing counsel. Now, an MSC statement,
not a brief, it must be shared with opposing counsel, and this pursuant to the California
rule of court and the local rule. So those are some of the key differences between the two.
Now, I'm going to go into a different area. This is criminal law. Let's talk about very briefly
about cases that you may deal with or very briefly about how ADR is in criminal cases. For those of
you that are interested in doing alternative and dispute resolution and criminal cases,
there it is, that opportunity. And as when I first got pointed to the bench, I presided over criminal
cases. So I was fortunate to do felony trials for numerous years. And I did see, I didn't do ADR
in that stage, but it is there is somebody's interested in it. Let's talk now about the types
of criminal cases very briefly. There are three different kinds of criminal cases, as you know,
infractions, misdemeanors, and felonies. And infraction is a minor violation, often including
minor traffic offenses and fractions, usually resolved in a fine and do not lead to jail time.
Now, misdemeanor is a more serious than an infraction. It's punishable by up to one year
in jail, county jail. And misdemeanors are a wide range of offenses necessitating more
significant legal proceeding compared to an injunction, but not as much as a felony.
Not felony is the most serious kind of crime. If offenders are found guilty, they can be sent
to state prison or even receive the death penalty. Now, very briefly in the fiscal year 2022 to 2023,
felony filings represented 183,151 cases. Misdemeanor filings total 439,141 cases.
And infractions, violence accounted for 2 million 0.6 cases statewide.
Now, let's talk about the process. How a criminal piece is processed very briefly. It really should
be two separate columns. The misdemeanors and the felonies are in kind of in two separate processes.
But the big difference between the processing of the felony and the misdemeanor is that in
a felony, you have the preliminary hearing held, whereas there is no preliminary hearing
and a misdemeanor. So in a felony complaint process, the felony complaint is filed. The warrant
is issued for the defendant's arrest or in bond set, if it's warrant, charges or not, or dismissed.
Then there's a preliminary hearing to see if there's sufficient evidence to hold the defendant
over for trial. Then if the defendant is bound over for trial, that felony information is filed,
then there's an arraignment on that information. Discovery occurs and discoveries are already
limited in criminal cases versus civil cases. That's information shared between the parties.
Once that's completed, the trial is held, jury or judge, usually jury, and then you have the
finding of guilty not guilty. And of course, the nebulous appeals follow. So this is how the
criminal case is processed, like I said, that made to difference between the misdemeanor and the
felony is the preliminary hearing being held in a felony, not in a misdemeanor. Now let's go over
the ADR in criminal cases. This is a very brief overview. In criminal cases, especially felonies,
generally the district attorney and the defense attorney engage in ADR without using a
neutral. There's no mediators. There's no private mediators. There is a judge, sometimes in
the court house. There's a judge that's assigned just to do ADP early disposition of cases,
but it typically is a negotiation between the DEA and the defense. Sometimes, like I said,
with the assistance of a judge. Now the other ADR program in criminal cases is a community
conflict resolution program. For lesser offenses, the attorney, district attorney may establish a
community conflict resolution program for qualifying criminal cases. This is pursuant to
penal code 14151. And some qualifying criminal cases are those where the juvenile vendors are
arrested for nonviolent crimes such as disorderly conduct, theft, property damage, alcohol possession,
harassment, and trespassing. And let's look at a couple other programs in criminal cases.
The other ADR in criminal cases is a restorative justice. ADR in criminal cases can include
restorative justice, which allows the victim and the alleged offender to resolve the matter without
formal court proceedings. In some circumstances, the accused might not face a conviction or a
criminal charges. Restorative justice ADR enables the victim and the alleged offender to resolve
issues outside the formal court setting. It may result in no formal conviction or criminal charges
for the accused, focusing on reconciliation and community healing. Disputes in this program
involve infractions or misdemeanors in which using this restorative justice principles and practices,
persons accepting responsibility for harm, causing behavior, and those harmed by the behavior
and brought together for facilitative dialogue to share their experiences
and plan the actions that will be used to repair the harm. Now, these cases are referred by law
enforcement or the prosecuting agents. The benefits of ADR in criminal cases are that, as in civil
cases, it resolves the disputes between the parties effectively and amicably. It helps restore or resolve
disputes that minimizes legal cause, like in civil cases, and the financial burden on the parties and
the courts. And, of course, the same benefit as in civil cases, it reduces the case load and the
demands on the courts. And now, let's look at what would happen in some of these in this program
if the criminal cases refer to a community conflict resolution program after the filing of a criminal
complaint. But prior to adjudication is resolved to that referral, the court may dismiss the action
pursuant to Penal Code 1378 or 1385. So, effectively, we'll conclude the matter without a criminal record
to the accused on the community conflict resolution program. This is a great benefit to a lot of the
individuals involved, so they will not have a criminal record. Now, we're going to discuss
common civil disputes that you may encounter in ADR. Common disputes that are likely to be brought to
mediation are the landlord-tenant, customer-merchant, neighbor-to-neighbor, personal injury like
traffic accidents, slip and fall, family law dissolution, business disputes, employment disputes,
and ADR may differ among these different types of disputes. Some of them can be more complex than
others. Some of them have certain unique characteristics that requires a different approach,
but these are the most likely civil disputes you will encounter in ADR.
Let's talk now about the first group, which is the landlord-tenant disputes. These types of
disputes involve the tenant's rent, let's talk first about the rent payment disputes, where
a involves the tenant's failure to pay rent or sufficiency of the landlord's notice to increase
the rent. For example, a common dispute is whether landlords give residential tenants sufficient
warning before increasing rent or whether the notice complied with the law or whether it was
delivered on time. The notices in these types of disputes are very technical. They have to
follow a lot of rules, and a common issue is whether or not the notice was legally sufficient
notice to increase the rent, for example. Another common landlord-tenant dispute is
breach of lease by the landlord or the tenant. Lease are very common, so the lease have a lot of
terms and conditions, and one of the disputes is that one of the landlord or the tenant reached
one of the many terms in the lease. Another common landlord-tenant dispute is the lockouts.
In lockout cases, tenants claim that they were locked out when the landlord shut off the water
or electricity or removed their personal property, so that's a very common dispute as well.
And also another dispute is security deposit disputes. These disputes involve landlord's return
of residential's tenant's security deposit upon a move out. The issues usually involve the amounts
deducted from the deposit for unpaid rent, claiming repair or damage caused by the tenant
beyond normal wear and tear, and in some cases replacing furnishings that the landlord, for
example, may claim the tenant took or damaged. Also, there may be issues as to the landlord's
statement explaining any deductions along with the reminder of the security deposit and any receipt.
There are laws and rules that provide specifically what the landlord's statement and what it must
explain that it deducted, so there's this very common dispute. Let's continue with landlord-tenant
disputes. Another one is retaliation. So these are disputes where the tenant claims that the
landlord retaliated against the tenants for exercising their rights. For example, the tenant
claims that the landlord tried to evict the tenant who asked for repairs or pointed out
that a rent increase was unlawful, and that the tenant claims that the landlord retaliated by the
tenant exercising those rights or making those complaints. Another dispute is reasonable
accommodations for disabilities. These are actually very common. I had a lot of these when I was doing
MSCs, and these disputes involve residential landlords providing reasonable accommodations
that will allow tenants with disabilities the full use and enjoyment of their unit,
of their apartment that they're renting. For example, this may involve a case where a landlord
has a no-pets policy. Then a tenant requests a reasonable accommodation for a service for
an emotional support animal. So the landlord has no tenants' policy and the apartment.
The tenant claims, I have a disability that requires that I have an animal as an emotional
support. So the question is whether the landlord will make the reasonable accommodation of the
disability. What the support animal is, I've had many cases where the support animal was a snake,
a miniature pig. I had one case that involved that. The common ones are dogs or cats. There could
be birds, it could be fish. I mean, those are all the issues that involve like, is it a support animal?
Do you have a documentation that needed to use? Are medical a requirement? So this is where a
mediator can be very useful to sort out some of the issues and be respectful of the tenants and of
the landlord's issues with regards to and interest as to how do they resolve that dispute so that that
can be resolved in an app amicable and in a way in a manner that is agreeable to both parties.
And the other landlord tenant and dispute is discrimination. These are disputes where the
tenant is claiming that the landlords discriminated against the tenants based on the tenants' race,
national origin, religion, sex, gender, sexual orientation, gender expression, gender identity,
ancestry, disability status, a marital status, familial status, source of income such as section
eight vouchers, veterans. And again, this is where the tenant claims that they were discriminated on
the basis of one of those characteristics. And let's now talk about the next dispute and that's
a very common is habitability. These disputes involve the landlord's failure to maintain a
rental unit in a habitable condition. And what does that mean habitable condition? It means
basically that the plumbing has to be in working order, the heating has to be in working order,
electrical equipment, the floors, the stairs have to be usable and a habitable condition.
Waterproofing may be an issue that makes sure that the windows lock properly, that the doors
lock properly. There's pest control issues. So these types of disputes often involve city
inspections for code violations. So if you get these kinds of disputes, you will see that there's
often a city inspection that's the plaintiff, tenant brings and said, or that if it's a defendant
says, you know, the city cited the landlord for this violation, which included, for example,
that the heating was not working or the doors were not locking. So you will often see those as
evidence in attempting to resolve this case. Now let's talk about unlawful detainers evictions.
This basically dispute in evictions involves two kinds of evictions. One is called at fault
evictions. This is where the landlord moves to evict a tenant because the tenant is allegedly
at fault. And the second eviction is no fault evictions. These are where the landlord moves
to evict the tenant through a no fault of the tenant. So let's look at the at fault evictions
and what are the issues and the dispute that you may encounter. So the issues are that there's no
payment of rent. So this is where the landlord is claiming the tenant is at fault because they
didn't pay the rent that the tenant breach of material lease of the term of the lease.
Another thing could be that there's a nuisance waste or using of the unit for unlaw purposes.
What could that be? There's many, many different reasons that we get come across this.
The lawful purposes could be a drug house, you're selling this, you're using it as a business,
whatever other purpose, because most leases provide that it can only be used for lawful purposes.
Either ones can include criminal activity committed on the premises or criminal activity
that's directed at the owner or agents or the neighbor there. So that could be another
at fault eviction. Another one is refusal to allow lawful entry to the landlord for inspections
or repairs. At fault, at last, but not least includes refusal to execute a new lease containing
similar terms. So these are a very brief look at the at fault evictions. Now let's look at the
no fault evictions. The landlord here moves to evicted tenant without attributing fault
and this will include where the owner wants to move in and to the unit where the tenant is currently
occupying. The other one went me where the landlord intends to demolish or substantially
remodel the unit. So the issuer in this one will be, is the unit really being substantially remodeled?
What is substantially remodeling? Is it really being demolished? So those are issues that you
will encounter in these particular cases. Now the other one is withdrawal of the unit from the
rental market. This is where the landlord has decided, you know, I'm not going to rent this
unit anymore. I'm just going to withdraw from the rental market. It's my property and I don't want
to rent it anymore. And the other one is the owner complying with a government order or local law
that requires that the tenant to vacate the unit. This could be many reasons. Eminent domain could
be one. I do a lot of eminent domain mediations and the government entity who's taking the property,
for example, may require that the landlord evict the tenants of the entity public agency may
take over the property for public use. So there are many, many reasons, but these are the no fault
evictions. Now let's look at unlawful detainers and let's look a little bit more at no fault
evictions. The owner moving, as I said, is where the tenant disputes the legitimacy of their eviction.
As I said before, the landlord claims it's evicting tenant for the owner for a move in and the owners
and actually this I wanted to bring this up again because it could be not just that the owner
himself or herself, it could be that the owner's spouse, domestic partner, child, grandchild, parent
intends to move in the unit. And this is a dispute as to whether the landlord is acting in good
faith and complying with all the state and local requirements. And again, as I mentioned before,
as to the substantial remodel is the dispute is here involved whether the landlord's compliance
with all state and local requirements when evicting a tenant to conduct this sort of
statutory model because the landlord is at this point maybe the tenants are maybe questioning
that the landlord's motive and the landlord claims, for example, that the repairs meet the
definition of substantial remodel and the tenant discrees and claims the repairs are cosmetic,
that they're not substantial. So I let me now go over some of the unique factors in settling
UD cases. So you unlawful detainer cases have very unique, they have their own timeline.
I did many for more of a commercial type when I had my limited, I'm sorry, my independent
calendar in court at Moss and they have they have a whole different time on then a regular civil case.
For example, unique factors is settling UD cases. First one is really the expedited timeline. As I
said, tenants have five days to respond to a complaint, five days. That's a very short time.
That's the application civil case. They have a lot more time there. And in UD case, the trial
by statute may occur within 20 days. Sorry, remember when I used to get these cases,
I was at a red alert, you know, trial, I need to set it within 20 days, as opposed to the long
and protracted civil proceedings. So those are unique, the expedited timeline could be good
for settling and bad, and that those are by statute. So the participant will be very mindful.
And the new trust are very mindful of the expedited timeline. Another unique factor is the judgment.
The landlord may opt for a stipulated judgment, but the tenants may prefer a settlement agreement
to avoid negative credit impact. This is very important because the tenant doesn't want negative
credit impact if you have a judgment. So they may, you may structure the settlement agreement so that
it takes care of the landlords and the tenants conflicting sometimes needs.
Now, the other issue in settling case, these UD cases is that tenants prefer to seal
the files to prevent discovery or future background checks. So you have to negotiate that. You seal
the file, not seal the file. How do you seal it? Why would you? Why would you not? So those are
issues that are unique to UD. In UD cases, often the parties bear their own attorney's peace, often.
Not necessarily, but that could be, I mean, the lease, for example, if the lease provides
at the prevailing party, pays for the fees, then you can negotiate it. And as I said before,
the beauty of a negotiated agreement is that you can agree on anything you want.
One party can bear it, the other party can. So that's unique to UDs. Now, the last but not
least of unique factors is the move out timing. This is a big issue in UD cases. When is the
tenant, if there's an agreement to move out, when is the tenant going to move out? How is the move
out going to be? Who's going to do the inspection after the move out? What happens is there was
damage after the move out. So there's a conflict between the landlord and the tenant prior. Is
the landlord wants the tenant out of there as soon as possible? The tenant needs, may need,
time to find a new place, find a new business if it's a commercial dispute. So the move out
date is important. And it could be a way to negotiate less money, more money, depending
on when the move out date. So that's really a big issue in UD cases in settling.
Now, in conclusion, your unlawful detainer cases, it's really mediations really play a crucial
role in resolving these disputes because they facilitate the dialogue, understanding and
compromise between landlords and tenants in a very streamlined timeline that is provided.
Often they lead to solutions that are, I guess, more satisfactory and less
adversarial than the court rule issues the parties can craft like their own agreements
on that things that would take care of some of the tenants and the landlord's wishes.
And may, for example, now allow a judge. So those are the conclusions on unlawful detainer.
Now let's go into another type of dispute and you will encounter in me issues,
which is the customer merchant disputes.
Taking typical facts, patterns and disputes between customers and merches may include warranty
claims, for example. These are for replacement of defective products that are specifically
permitted under the seller's warranties. For example, buying a washing machine that does not work.
The buyer may make a claim under the warranty. And there's issues on that is whether the claim
was made timely was the product really defective. The next one is the product defective. The lemon
law claims products alleged to be defective. Now they're going to talk about lemon law as an
applies to automobiles. They have a whole different that's a whole different statutory gods and
those cases usually have their own mediation program fact that's another program where
they have a very robust mediation program. But under merchant and customer disputes,
you can have defective products. Another very common customer merchant dispute is
service dissatisfaction. Billing customers, for example, more than once for a single item. Have
you ever looked at your bill and you said, oh, they billed me for the same thing twice. You've
been going to the supermarket and they can double bill for something. Failing to process a trach
section, for example, and a timely matter. That's common. How about sending an order to an incorrect
address? Let's say one of the big buyers Amazon sends the order to an incorrect address and maybe
this was something expensive and important and there's this dissatisfaction in the service.
Delivering an item that doesn't match what the customer order. Sometimes some vendors online
and very easy to return it. Others there isn't. So these are all service dissatisfaction disputes
that sometimes it becomes so major that the buyer, the consumer files a suit or a claim
and you need a mediator to resolve that. Another common customer merchant dispute is payment disputes.
These are payment disputes typically happen after a billion errors or there's a fraudulent
transaction or a non-delivery of good items. Somebody stole your credit card and they
blend up and bought a car or bought something really expensive or not so expensive, but they
was a fraudulent transaction. You're trying to work with the merchant to try to,
in the credit card, to try to work with that dispute. So in conclusion, arbitration and
mediation are very effective in customer and merchant disputes. Sometimes these services provide
already for arbitration or mediation in the contract when you sign like a credit card or you
buy something or warranty claim. So they're written into the ADR is written into it and
of course ADR like in the other disputes that provide a quicker, more cost-effective and less
formal resolution process, again benefiting both the consumer and the businesses by preserving
relationships and reducing litigation cost helping everybody. Next we're going to go into
neighbor disputes. These are actually quite fun. Fun in the sense that they're very creative
disputes between the neighbors. I handle many of these and the common scenarios in neighbor disputes
are noise coup planes. You would think that this would not be an issue, but it is. Your neighbor
plays the drums at five in the morning and you want to sleep and it's a complaint that you've
been dealing with. It's driving you bananas. So there's a noise dispute. They're having a loud
parties every weekend. Property boundaries. These are very, very common and you often involve
issues where there's appraisers involved so that you can determine the property boundaries.
They're very interesting because they involve a review of property records and going back to,
for example, when the buyers bought the property, it was that fence already on the other side or
not. So these are people, neighbors disputing where the property longness and you would say,
why is there a dispute? Because there should be a appraisal property report, an S-break for it that
specifically provides where the line is. But sometimes it's not clear and sometimes when they
bought it, the building already was intruding into that property. So property by-route disputes
involve sometimes very complicated issues. Share property maintenance where the both parties,
neighbors, I'd say, agree to maintain the particular area that's shared by both and enjoyed by both
because of the location of the parties. And one neighbor then decides, I'm not going to pay for
the gardening or the maintenance of that property and they disagree on that. This could be in
commercial properties as well where there's common areas where they agree to maintain a
certain area and it's not maintained to the satisfaction of one or the others. Tree disputes.
Excellent, excellent a way to train mediators is on tree disputes. I mean, the issues, you're
going back to property to your property 101 and there's a big tree on one side, but the branches
go on the other side of the fence and the other neighbor says, you cut the tree down, it's not
your property. So these are very, very interesting, the tree disputes. Then you also even could have
where the tree is protected by city ordinances. I've had cases like that. The tree is protected by
city ordinance. Can you cut it? Can you not cut it? Do you have to get permission from the city?
Who bears the cost of trimming it, cutting it, pruning it, so replacing it, putting it someplace
sells. So these are disputes that could be quite complicated as well. Visual nuisance.
Let's say you're displaying art that is offensive to your neighbor. Is it annuances? Is it not
annuances? Very interesting issue. Children's behavior is a common one. One neighbor has kids
who the kids are unruly, loud and obnoxious maybe. The other party is a writer I had then and they
need quieted peace and they're meditating or in their zen place while the kids are running
the mat around. Is that an issue that could be resolved? That's issues that involve a lot of
emotional behavior by the party. Construction in one party. One party is remodeling their house.
The other is next door and they're getting all the dust and all the noise from the construction.
These are very common where you have to go into the local city ordinances. What do the city ordinances
provide as to when construction can start? Believe it or not, you have to go to the local cities
and they are cities that provide. You cannot start construction between, you know, by earlier than
six o'clock and no later than 10 p.m. And the neighbor says, well, they're starting construction
early in the morning, waking me up. Well, that's a violation of the city code. May or may not be.
So the parties can agree. Let's, because of the nature of this, you can agree on when the construction
will start, how and all that. So there's a lot of details that need to be talked about. Eastmans.
Similar to property boundaries, Eastmans can be very interesting and they involve again
reviewing a property records, going back to where somebody bought the property. Didn't even know
there was an Eastman. That one party can walk through the front of the property to access a
landlock land, for example. So there's a lot of creative ways to approach this, to resolve this,
because you can redo the Eastman and rerecord it to the satisfaction of the parties, because maybe
the conditions of the property had changed. They want to do the Eastman so that it doesn't disrupt
a tree or an axis to one of the properties. Fence, erections, demolition and maintenance.
That's very common. A neighbor friends, a neighbor, let's call it a good neighbor fence, if you may,
where one neighbor constructs a fence that on their side is very pretty, on the other side,
it's not so pretty. So the neighbors can agree on how the material, the design of that fence,
because you're both going to share that. So that takes a lot of calm and patience to resolve those
issues. Privacy, that is an issue that has really been exploding in the last maybe five years,
10 years with ring cameras or any cameras that neighbors have. The cameras pointed at the other
neighbor's house, and there's a dispute that you're invading my property. I had one case where the
camera was pointed towards the neighbor, and the neighbor claimed it went right into the big
window so it really was looking into their house. And we had to look at how the property was built,
and could you place the camera some other way? What really, why is the neighbor doing that?
Is there issue with crime or maybe can you redirect the camera for more privacy?
Those are very factually intensive issues that are very interesting, but they're much more
prevalent now with the cameras. Animals, another dispute between neighbors is common.
Barking dogs is the most common. You have a dog that's always running on the other side,
or tamed domesticated lions, that was my favorite one I had. Is that in violation of any code?
Is it safe? Roosters, I love that one, where people have chickens or roosters. Is that first
one violation of the code? The neighbor complains, it wakes them up. The other one neighbor thought it
was a great thing that didn't need an alarm because the rooster would go off every day
at the same time at six o'clock in the morning. So those are, I call them fun disputes because
it's really factually intensive. Now let's look at the most common types of neighbor disputes.
This is pursuant to find laws survey that was done in 29. So according to this survey in 2019,
the neighbor disputes are most often triggered by, noise is 48% of all disputes. Not surprising.
So whether it be from a Rackles late night party or maybe different sleep schedules that result
in one neighbor waking up the other, noise is apparently the number one way to annoy your neighbor.
Now the other one that's in there is pets and animals, 29% according to the survey.
Pets and animals can be tricky to deal with directly since it is the animal that is causing
the problem and not the owner. But many times the issue stems from the owner's failure to
properly handle, control or train the animal. The 21% is next to children's behavior.
Much like pets, children run into onto your property being loud or defecating your property
or destroying your property can often be the result of their parents. Your adult neighbors,
so not properly looking after them. State laws may under certain circumstances hold kids' parents
liable for damages. So you have to look carefully at what is exactly the conduct,
is it a lawful, who's liable, parents or not. And next is 18% is visual nuisance
of the property's appearance. Many eyes are such as unkept lawns, offensive signs,
inoperable cars parked on your lawn, overflowing trash cans that can lead to
error between neighbors. So this is the visual nuisance. And 17% is property boundaries.
In these types of disputes, neighbors often have misconceptions about where their property begins
and ends. Usually these disputes, as I said before, involve the neighbor building
improvements such as a fence or plumbing a couple of inches or feet into the other neighbor's
property line. And these cases often involve appraisals and title insurance.
So I found this survey very interesting. It's 2019. I'm sure there's probably a newer one now.
But just remember the number one way to annoy your neighbor is making noise and annoying that.
Let's now talk about special considerations when mediating neighbor disputes,
when dealing with neighbor disputes. These are highly, highly emotional disputes,
because you have two people that live next to each other and neither one is going to move,
according to their stance. So they have to put up with each other, whether they like each other
or not. So they're very emotional. So as a mediator, your challenge is to maintain
civility between the parties due to this ongoing living in close proximity,
is how are you going to facilitate an agreement between two people who have been
in annoying or tormenting each other for maybe months or years. And they finally had the file
lawsuit. So there's a lot of background and emotion between the conduct of these two individuals.
So often the dispute resolution here does not hinge on money or if you're going to pay me this.
It's not money is not really the motivator, financial gains or losses, but it's kind of a sense
of fairness, of an equitable outcome. You've been doing this to me for so long, we used to get along
as that comes a lot of emotions of relationships like everything was fine until the sun ruled
in and started doing this and that. So it gives a very complicated debauchee. So it's important
for mediators to consider the future relationship between the parties and how to very gingerly
navigate those conflicting issues and emotions so that they can maintain stability and learn to get
along as neighbors because we're going to see each other every day picking up the newspaper,
driving in and out of the house. So they're very challenging sometimes to resolve.
Next we're going to talk about personal injury case. Personal injury cases are the motor vehicle
accidents are the leading source of personal injury cases, especially Los Angeles where we all drive
so much. And these include car accidents, motorcycle accidents, trucking accident, pedestrian
accidents, and they often involve significant injuries and damages, sometimes involving expert
opinions on damages, our injuries, the liability, the manufacturing of the vehicle, for example,
that could be an issue. The other type of personal injury case briefly discusses the medical
malpractice. And these cases arise where healthcare professionals deviate from the standard of care
resulting in harm to the patient. In some examples, for example, surgical errors or mistakes were made
during the surgery. NIST another one is misdiagnosis, NIST diagnosis for delayed diagnosis, where the
patient or the plaintiff in this case is alleging incorrect or delayed treatment. These involve
experts opinions as to the alleged malpractice of the healthcare professional. So let's talk about
the most common personal injury cases. We have the wrongful death, bicycle accidents, dog bites,
and premise liability. Now, in the wrongful death cases arise when an individual loses their life
due to the alleged negligence of another. These cases can be initiated by the surviving spouse,
children, parents, or of the deceased. And they're highly emotional cases, as you can imagine,
because it involves the loss of a loved one. So, and of course, they also involve a lot of experts.
Bicycle accident cases. Now, Californian is one of the top states for bicycle accidents losses,
accounting for a significant portion of the 2% of cases filed each year.
California is in the fourth most cycle-friendly state in the United States.
The California Active Transportation Safety Information pages reports that Los Angeles County
is one of the counties with the highest bicycle accidents fatalities. Wow, that's a lot. LA,
one of the counties with the highest bicycle accident fatalities. In 2022, there were 172 bicycle
accidents fatalities in Los Angeles. I'm sure you could get the stats for the most recent year,
2023, 2024. So, although Los Angeles is one of the friendliest, we also have the most fatalities.
And of course, then you'll have the most losses involving those. Dog bite cases is the next
person injury case that's very common. Dog bites are another common type of personal injury,
and they may involve the issues of personal injury law, or regulations regarding animal
ownership and control, and the claims may involve serious injury, including disfigurement.
So, these could be very serious matters as well. And last is the premise liability. Slip and fall
accident cases involving the conditions of the property, like the floor was too slippery.
Clip and fall accidents often occur on up to stairwells, wet floors, or broken sidewalks.
For example, if it's a sidewalk controlled by the public entity, then it will be
a suit against the public entity, whereas a condition, dangerous condition of public property,
for example. So, you have to determine who controls, maintains that, the particular premise,
stairwells, to deal with premises liability. Now, let's continue with most common personal
injury cases. Again, another one is product liability cases. Product liability cases involve
manufacturing defects and or design defects that cause individuals to suffer serious bodily
injury or death as a result of using a product. Another common allegation is that the manufacturer
failed to provide an adequate warning for a product, and this failure to warn can lead to liability.
And in this case, you have every party in the chain of distribution can be defended in these cases.
So, you could have a case that involves a lot of different parties, the manufacturer or the seller,
the distributor. So, there could be a lot of defendants in this type of case. Another very
common or so injury cases, ride sharing cases. Ride sharing cases have become increasingly common,
given the surge in popularity of services like Uber and Lyft. And these cases may involve issues
dealing with complex issues, sometimes with negligence, insurance, and sometimes criminal
loss. So, these are more and more common, both in criminal realm and in the civil realm.
Now, we're going to go into family law disputes. Let's discuss family law disputes. And in this case,
we're going to talk about divorces, the solution of domestic partnerships, child custody,
spousal support, alimony, and child supports. Now, let's look at the family law filings in
the LA Superior Court for the fiscal year 2021-2022. So, you can have an idea of the body of cases that
are we dealing with. Family law dissuasion is in that fiscal year, it was 29,072, child support,
15,622, domestic violence and harassment, 30,268, parent adage is 60,135, and family law other,
this is miscellaneous, is 10,386, and adoption is 278. So, this kind of gives you a glimpse as to the
numbers in family law, at least for that particular fiscal year. There are other statistics, and please
go to the court's website for other stats that you may be interested in. Let's talk about
a divorce dissolution of domestic partnership. Divorce mediation enables here the parties to
decide how to end their marriage or domestic partnership in a peaceful and confidential manner.
Couples work with a mediator to discuss some disagreements and hopefully reach a mutually
agreeable settlement agreement. Mediators are very important in these types of dissolution,
again because the issues are very emotional and the mediator can be very, very useful too. Well,
some of the emotions and assist the parties in resolving a highly emotional dispute.
Child custody issues. Child custody mediators often help parties develop a plan for a child
to spend time with both parents. Now, the primary focus in these disputes is to make sure that the
child maintains a healthy relationship with both parents. And, you know, one parent wants one thing,
the other parent wants another thing, and the parents disagree sometimes as to what is in the
best interest of the child. Mediation helps parents create a parenting plan that works best for the
child and their unique needs. A lot of times you have to refocus the parents as to the unique needs
of the child, not of the parent. So a parenting plan will deal with things like how the parents
will make the important decision for the child, such as health care, education called legal custody,
and the planner will also describe who the children will live with most of the time,
call physical custody, and how the child spends time with each parent, parenting, time, or visitation.
The LA Superior Court has a child custody mediation program provided at no cost through the Family
Court Services Department. So in this case, mediation gives the parents the opportunity to
discuss with a neutral mental health professional if needed, what is the best plan for the child.
Let's go over some of the parenting plan, things that it will deal with that will make important
decisions for the child, such as health care and education. Some of the issues you also will
deal with is visitation schedule, school issues, arrangement for summer, winter holidays, spring
breaks, where's the child going to spend time with which parent, communication between the parents,
you have to establish how the parents will communicate, email, text, through and somebody
may need to monitor that, how the kids will participate in extracurricular technique style.
One parent wants the child to practice piano, the other one wants the child to go practice basketball.
So those are the things you have to do with health care arrangements and of course procedures for
post-judging modifications. This is important so the parents can reoccur circumstances change.
Let's agree now how we will revise the modifications to good judgment.
Now child support, the mediator can facilitate an agreement on child support amount,
the duration, the manner of payments and other issues that may be discussed at the
mediation may include medical expenses, life insurance, health insurance, the division of
future higher education, who's going to pay for college? What if the child, if you discuss that
the child's going to a four-year college and the child decides to go to a trade school
and potentials again for modifying the inward. Now we're going to move to most common business
disputes. I'm going to briefly discuss business disputes. The most common claim in business
litigation is undoubtedly breach of contract. This could be a breach of contract between
two businesses, between a business and the customer, a business and the supplier.
Often breach of contract claims include disputes over payment, delivery of goods,
delivery of services. These kind of contracts could be a lease, it could be a sale of products
agreement, a vendor agreement and any other number of type of businesses where there's a dispute as
to an allegation of a breach of the terms and conditions of that agreement.
Now, another very common business dispute is the partnership disputes.
Delved with a lot of partnership disputes. This is a dispute where the often involves
disagreements between partners about the management of the business, the leadership
of the partnership, like who's leading it, they're not leading it correctly, they're absent,
or they're the other partners disagree as to the leadership of the partnership.
Another issue they often dispute is how the profits were divided, was the accounting correctly,
was the books open to the other partners to see how the profits or net distributions were
resolved to me as the partners. Another dispute could be negligent by a partner,
that one of the partners negligent did XYC that damaged the business or each a fiduciary duty
where one partner is not acting in the best as a fiduciary to the other partners. Misappropriation
of funds, one partner took too many funds and used to perp personal needs, one partner used
the partnership business funds or their personal trips or bought a fancy car, fancy boat,
lessons and partnerships disputes. So those are all very common disputes involving businesses.
Now we're going to move to the most common employment disputes. I'll discuss some of the
most common disputes there are many, but these are the big ones. Rawful termination, discrimination,
whistleblower. Rawful termination, these claims deal with employees alleging that they were
terminated, released, laid off or fired in violation of some law, usually discrimination
or whistleblower statutes. Now employment discrimination claims include discrimination
based on rape, sexual orientation, gender, national origin, religion, age, discrimination claims can
include harassment and who are the defendants in this case? The defendants are usually the employer,
supervisors or sometimes coworkers. A very common type of discrimination against individuals
is disability discrimination. This is including the failure to properly reasonably accommodate
a disability. And I discussed this briefly before in the context of unlawfully chambered.
And employment is where an employee brings a doctor's note and says, I need this accommodation
so I can perform my duties and dispute about that. Another common claim of discrimination is
on the basis of age. For example, the ADA prohibits employers from discriminating against
employees over the age of 40 because of their age. So there could be a claim by an employee says,
you discriminated against me by either terminating me, giving me a bad assignment, not hiring me
because of my age. And this often involves a lot of statistics like the overview of the
all the other employees who they hire, who they rehire and stood this individual.
And whistleblower loss is another very common employment dispute. And whistleblower claims
the plaintiff employee alleges that the employer took adverse action against an employee
after the employee engaged in a protected activity, such as blowing the whistle or threatening to go
to the authorities about illegal activity that the employee was allegedly engaged in.
For example, the employees may claim that they were fired after they reported that the employer
violated a Cal Ocean regulation or some other regulation or some other law. And these are very
common. And next one we're going to discuss is hostile work environment. Another very common
dispute. The hostile work environment employment litigation is where the employee alleges that
they were subjected to hostile work environment that was sitting here and pervasive and prevented them
from properly conducting their job. And who is creating the hostile work environment? It could
be coworkers, it could be supervisors. So a hostile work environment is also very fact-intensive
where you have to analyze the environment and see if the alleged offending conduct was severe
and pervasive to alter the conditions of employment. Another one is wage and hour disputes. The
plaintiff here may claim that he was deprived of commissions or bonuses, vacation pay or stock
options. These may be disputes about the retutemacy of claims for entitlement of those,
as well as whether some of those denials qualify for multiple damages. In these claims,
both the employee and employer generally have strong emotions about their positions.
So making mediation is a good alternative to resolve disputes. You would not think that they
are emotional components as well in this. Next is the wage and hour class act. These cases have
multiplied in their recent years. Gracing claims that groups of employees have not been paid,
their amount of minimum wages, improper deductions have been taken, where overtime or premium
time have been underpaid. Litigation of these claims can be complex and these issues involve
a poor systematic practices. Litigating a class action to the end is inexpensive and often
considerable risk for both sides. Both sides take big risk when litigating a class action.
So the employer risks a large judgment because we're dealing with class ashes and the employees
risk that they cannot prove the class action. So these are very good cases that are fine for
resolution by inviadiator. Let's talk now about the most common employment disputes involving
independent contract or misclassification. Whether an employer is considered an employee
or an independent contractor is not always clear, it is a rubinal litigation on. In these claims,
the plaintiffs, employees, allege that although the employer classified them as independent contractor,
that they're really an employee and therefore entitles all the employee benefits and protections.
Like wage and hour disputes, these claims can arise on an individual basis or a class action.
And as with other types of class actions, mediation is preferred
for a longer, more expensive trial. The next common dispute is claims of retaliation.
Claims that discrimination are often accompanied by a retaliation claim. This claim is made when
the employees complain or engage in other similarly protected conduct and they believe
they suffered retaliation from the employer because of the complaint they made. They are
claiming that they were subjected to an adverse employment action because of the claim or complaint
that they made. And in these cases, it's often the issue, the issue is, did they make a complaint?
When did they complain? Was it really a complaint? And then the adverse employment action, the
retaliation, was it because of the complaint or was it circumstantial to the timing? So timing of
this is very important. I often make a charter of these cases. When was the complaint made and
when was the alleged action? Because of course, the adverse employment action has to occur after
the complaint was made so it could be proven that it was as a result of or because of substantial
reason about because of the protective activity that the employer was engaged in.
Next is severance agreement. Employers often offer employees who leave their
company certain types of compensation in return for their signing a contract that includes a
non-disclosure or non-compete agreements. These types of severance agreements are often the
subject of litigation. Employees may argue that they are entitled to a severance by the terms
of their employment contract or because the employer made a promise to them about a particular
severance benefit and the employer may counter that the employee's breach of the contract negates
that claim. So that's very interesting issues. Often the severance dispute becomes part of
the claim for a wrongful termination. All of these claims are really often alleged together in the
same thing. The last section of this presentation is strategies and tips for effective mediations.
I hope that you will gain some insight into some of the strategies that I have learned as a
settlement judicial officer when I was with Los Angeles Superior Court and now as a private
mediator. I will go over briefly some of them, not all of them, but I hope you'll find this helpful.
My first tip in strategy is an remediation is to prepare, prepare, prepare. You can never be to
prepare for a mediation and you may think, well, what is there really to prepare? You just read
the briefs and you start the mediation. Not so fast. I find that preparation is conducive to a more
effective and a more efficient and productive mediation. So the first thing to do to prepare is,
of course, the obvious of reviewing the briefs and any relevant documents very thoroughly.
Well, I try to review the briefs and from the brief, after I review the briefs,
I try to understand the party's positions, how I can best help them resolve their dispute,
even what I've read in the briefs. And a lot of times you will get a briefs that are very,
very long and some that are very, very short, some that attach thousands of pages as exhibits
and really only one paragraph is important, but it is important to review the briefs thoroughly.
Now, the next thing is as you're reading the briefs is how can you best prepare as you're
reading the briefs, try to anticipate and prepare for the emotional responses and the dynamics of
the parties. You can read between the lines of the attorneys do a good job in the briefs of helping
you because the attorney's job in doing the brief is to help you, the mediator, help me help them
resolve the case. So as you're reading the brief, don't just read it for the facts. Read it for,
try to prepare, come up, develop responses, approaches, solutions to whatever you are
dealing with and anticipate the emotional response of the parties to whatever you're
going to propose or that they're going to propose to resolve. And like the last thing here is really
in preparing and reading the briefs is you, it's so important to prior to the mediation,
think of creative approaches to resolve the case. If the brief of course gives you sufficient
information for you to make that creative approach assessment, because in the resolution of some very
emotional matters, you have to be very creative and hopefully the brief will give you information
for you to do that. Now, how do you, after you read the brief, what's the next step to prepare?
The next step I would recommend is have a pre-mediation conference. As a settlement judge
in Los Angeles Superior Court, I didn't have these often because of the time limitation. We were
overwhelmed with a lot of cases, so we just the time was an issue. I did have them in
complicated, complex cases, but now that I'm in private mediation, I really think this is a
key to preparing. Pre-mediation conference, and as you already read from my previous statements,
the confidentiality applies at this conference because it's pre-conference, pre-to-the-mediation.
So what do you do in this mediation as a mediator? Pre-mediate, pre-mediation conference.
You discuss issues to increase the efficiency, the effectiveness of the mediation.
You'll be surprised the things the attorney will share. This is just with one side, so you
contact the plaintiff's attorney and then separately, differently date, time, the defense
attorney, and you speak to them and you say, is there anything I need to know that you think will
help me help you resolve the case? They want to tell you things that they can't say sometimes in
front of their client or that they want you to be on the lookout. So address, for example,
issues of potential client control. Do they have, do the attorney have any issues with client control?
Is there some way you can help? Somehow you can help. Sometimes you can establish a
procedure, a protocol for you and the attorney to communicate so you can speak to the client.
Attorney say, you know your honor, my client has an issue with ABC. Can you really focus on ABC?
Great. At least you know that that is a trigger point for the client. Identify those areas of
focus that the attorney thinks are important. You could focus. Identify trigger points to avoid.
The attorney says, don't go here because that will trigger my client and go out of control if we
go there. So you need to know that before the mediation. And of course, most importantly,
you try to understand the party's motivations. The motivation is really key. Of course,
the lawsuit is similar to the money. Who's going to pay who generally? But what is really motivating?
Because that's how you're going to deal with resolving the issue. If you get down to the
motivation of what is it that is motivating this side? Why do they want this particular angle?
And you'll understand that and better craft a customized agreement knowing the motivation.
Another thing you need to understand is who's going to attend the mediation? A lot of times
you say, well, for sure the client. A lot of times they should come to the mediation with a
support person. That is important to know. Sometimes who is making the decision is not really the party.
It could be a close person to the party who's really a decision maker. This seems to be an
easy question, but when a party in a lawsuit is an individual person, that person is generally
decision maker, but not really. I've had cases where it was a family dispute. It was wonderful
to learn how this family made a decision. They brought the son, the uncle. In this case,
it was the mother and the father, but you really got to see who's really making the decision. They
made that decision in that family context. It's important for you to know those cultural issues
of how a decision is made in that context. When a party is a business or an entity, the answer
is less clear. When it becomes a business or entity involved in a mediation, the person who needs to
participate is someone who has the power to accept and offer a resolution made by the party.
Participating in a mediation means that being personally involved in all of the events that
occurred during the mediation session, getting the opportunity to gain a realistic understanding
of the dispute and having the chance to voice opinions and concerns. The best form of participation
is physical presence, but participating in a mediation could be by video conference or telephone.
That may be more appropriate than physical presence. A key is, of course, who is making the
decision. The other area that you will focus in a pre-mediation conference is, for example,
having the important documents. You're going to ask the parties, does everybody have all the key
documents you need? Depending on the stage of it, it's a lawsuit. It may be very early on the case,
and a lot of cases are very right to be resolved at an early stage. Others are not,
because they don't have all the information really to assess or properly evaluate the value of their
case, because they don't have all the key documents or some of the key documents. In some cases,
you don't need any documents. You can resolve it without key documents. At that pre-mediation
conference, okay, councilman, do you have everything you need to just properly enough
to settle the case? Because I've had mediation, this one on the other side says, well, they don't
have this document, and that's why they're in crazy land in their offer or their demand, because
they don't know. You're talking apples and oranges, and they're very difficult to settle if both
parties don't have the same information. There's strategic reasons why, of course, you would
part as exchange and be for the mediation or not. So it does involve working to the dispute,
and documents can sometimes be invaluable in achieving that goal. Let me give you an example
of a dispute between a homeowner association, a condominium owner. It is important to refer,
for example, to have the cognizance, conditions, the restrictions of the homeowner association
present at the mediation, so you can personally read them. And in a dispute between an insurance
company and a policy holder, it's important to have the policies present, and so that you can
assess them. Now, what are the things will you discuss at the Supreme Mediation Conference?
Another thing is the litigant specific needs. What does that mean? What does the litigant need
to meanfully participate in this mediation? Do they need a support person? I've often allowed
a support person. That could be a daughter, a son, a parent, a good friend, and of course,
you have to deal with the confidentiality issues if they have to sign the confidentiality
agreements. And I'm not going to go into those in detail, but make sure you read those.
Another issue is, is there an interpreter need? You don't want to learn at the mediation
that, oops, we need an interpreter for a witness and there's no interpreter here.
Sometimes the parties think the media is going to provide it, or in court, the court provides
interpreters if the parties notify the court with sufficient time. So you have, does an interpreter
need who needs, so does we have two interpreters, one for the plaintiffs, one for the defendant.
So I speak Spanish, I could conduct it on Spanish, but you have to make sure that the parties
and the attorneys understand the language. So you don't want to have a wrinkle that will kind of
derail your mediation. So at the pre-mediation conference, I often say it's an opportunity to
iron out all wrinkles so that when you start the mediation, you're off and running, it's smooth,
no issues involving any procedural or housekeeping issues. Another issue you may want to address
at this pre-mediation conference is any accommodations for the parties or the attorneys.
Any dietary restrictions. If you're doing private mediation in person, the media is often provide
lunch, delicious lunches. You will have some dietary restrictions, some allergies, some preferences,
food issues that you may have. Hearing aids, does anybody need hearing aids?
Anybody's take a break to take some medicine. Anybody cannot sit staffer to long periods of
time. So you need to determine the accommodations because once you start the mediation, you want
to make sure everybody has what they need to be comfortable. In pre-mediations, they're eight hours.
So for eight hours, you need to make sure everybody's comfortable. I often tell them,
bring your snacks, water, coffee, whatever you need. If it's on Zoom, they often have their
dog with them and that's, I think, very comforting and productive, frankly. So it's a matter of choice.
And of course, you have to talk to the mediator. So the pre-mediation conference, very important
prior to the mediation to have a successful mediation. Now let's talk about strategies to use
during the mediation. These are just a couple of tips. There's so many. I could spend hours on this
button. First one is that I think is most important is active listening, a must. What does that mean?
That the parties want to be heard and the attorneys want to be heard. So it's so important to listen
actively to really understand the part of positions and motivations, approaches. They
provide you with tips and suggestions on how to best craft a customized agreement for this
particular dispute. So active listening is a must. Often what I do is, here's a tip, if you'll have a
party who wants to tell you their story and they could sometimes go on and on and on and go off
into a tangent and you can gently bring them back and I often repeat or rephrase what they told me
so that they know that I am listening and that I am understanding what they're saying. For example,
if somebody is telling me, let's take my favorite neighbor disputes about the trees hanging over
and the neighbor is very emotional. Your honor, this tree has been a nuisance. It has fruit.
It goes on my side. It's rotten and my dog has to eat it. My kids get poisoned with this fruit
that's been rotten and they go on and on and on. I said, okay, Mr. Son, so I understand. You're
telling me that you are very much, I understand your concern and that Buddhist particular tree
being a nuisance to you. So you kind of rephrase it so that they understand and that you are listening
to their dispute. So active listening is a must. Next tip I would say during the mediation is
patient. Mediation involves change and its parties in a dispute typically believe that they both are
right. Okay, both parties think I am right. They're wrong. I'm here for the media to tell the other
party that they're, you know, that they are wrong about the dispute. So each side may or may not
understand their own interest as those of the other party and each may have unrealistic expectations
sometimes. Each party may be unwilling to treat the other with any degree of respect depending
on the dispute. So it takes time to address these issues and it takes time for people to change
their mind. It is important that the parties allow for this time to organically occur. Of these rules,
a stressful mediation, it is really the most important that not to have changed the party's
mind to at least have them understand the other side's perspective. So patience and this is not
going to happen right away. That's why patience tool is a process. It's a slow simmering process that
takes time for the other parties to really understand and for the mediator to bring
sometimes unrealistic expectations to a more realistic level of what it will take to resolve
the case. Next is flexibility. So flexibly, it is crucial to be flexible because it's a dynamic
process. Mediation is very dynamic. The parties want to be flexible of maybe they came in and
finished. I'm going to settle under these terms. Well, they may get two out of those three or maybe
number three may look a little different than they thought. So they need to be flexible but
explore why they are bent on these particular terms being the way they see it so that you can
make you do it as a mediator be flexible and so will they. So that they can, you know, I have to say
this is a compromise. This is both parties have to give in a little bit and hopefully flex it.
Another strategy during the mediation is perseverance. Persistence. You must be persistence
because often, very often the parties is well, if that their position on just gonna leave this
mediation, what are you going to do as a mediator? Have a walkout? Bye bye. No. That's what they're
paying you for to be persistent to make sure that maybe that could be how they really feel. Maybe
it's a it's a pontificating on one side. Maybe they're just, you know, their way of negotiating.
So we be persistent and persevere and trying to get the parties to come to the agreement.
A very important one and other mediation strategy is to gain the parties trust and confidence.
You are there to facilitate an agreement. You're not there to advocate one side to the other.
You're there to have each side understand the other side's position. So gain their trust and
confidence and once they trust and have the trust and confidence, they will trust that you will do
the best to resolve the manner that dispute in the manner that is acceptable to both parties.
And last strategy is I think I already briefly talked about it is to offer alternative creative
solutions. Remember I mentioned that during the time you meet reviewing the briefs, you think
about this. So think about what you reviewed while thought about as alternative creative solutions
when you're reviewing the brief. Those may change once you hear the parties or they may expand.
In achieving the solution, the goal is to reconcile interests and you must identify
different options and those options must allow both parties to achieve enough of their interests
that their options would be better than no deal at all. So you have to reconcile the interest
and this requires problem solving and problem solving requires creativity for the parties
to have an open mind, an open heart about how to resolve the issue. So good techniques for
generating this type of thought is brainstorming, brainstorming with the attorney, with the party,
ask him. So to get to point from A to B, there's three different rows. Which one do you think
will be most palatable to you, A, B or C? And what do you think we should be done? Ask them
because they're the ones dealing with the dispute. They know the idiosyncrasies of the dynamics of
the parties, the history of the dispute. So offer, but solicit also their input. And this is a process
in which parties identify ideas that they can reconcile and their ideas have ownership in
the idea. And no idea that the couple should really be rejected or criticized. You can build on
one another. Sometimes the better ideas come out late in the process at the very end where parties
are tired and they say, no, that's it. We're going to walk out and they say, no, let's, after people
believe that they were not able to deal, there's new ones that come up. So once a number of ideas are
identified, then the parties can evaluate them and select the results in maximum benefits for
each part. And again, this is a dynamic, comprehensive input, respect, and understanding of each
party's perspective. Now let's talk about the next topic is types of disputes of difficult parties.
What? There's difficult parties and mediations? Yes, I, for 18 years on the court, I dealt with
very professional civil parties, but they're also very difficult parties. So these are the types of
difficult parties you may encounter in a mediation. One is the angry one. The angry party may be
angry about the incident that gave rise to the claim without any damages. When angry may be about
the process, they may be angry about, so they're attorney, you never know what they're angry,
but there could be a combination of reasons. And these parties start, often get, start to get
frustrated, and then they get angry. And many parties believe that their own anger is a sign that
things are not going well and they should stop the mediation. This is not really correct because
a deal can be achieved if the parties can consent to a resolution that satisfies their
interests better than having no deal, as I said before. So it's important that you work through
that anger and try to understand them. The reason for the anger, so that you can get to the source
and then craft the agreement from the anger. Why is your client really angry and you pull the
attorney to a private room? Why is it good? So you could really understand what is really triggering
the anger. Maybe that's the way the client is. Maybe that's the way the client negotiates.
We have to understand what it is and read that correctly. The other type of difficult party is
the emotional one. The emotional one may be too emotional or too sad, too upset about the incident
to be rational, to value the case. You have to be careful with that because it's important for them
to be emotional, but you have to understand the source of that. So it may be wise to speak to
the attorney and understand the basis of the source of that. The other difficult party is the know-it-all.
This is the party that things they know more than the mediator, the attorneys, the judges,
and all the jurors come by. They know everything and they're right and everybody else is wrong.
How do you deal with that? We all have people like that in our everyday lives.
So it's important for you to figure out how to navigate that particular party because your
goal is to facilitate an agreement. So hopefully that Mr. or Mrs. Know-it-all will have some confidence
and trust in you as a mediator so that you can facilitate moving the needle into a negotiation
that is productive. The other one is the uncontrollable party. Now, this uncontrollable party is
even where even the attorney cannot get control of the party's expectations or they have such
that expectations that are so out of the realm of reality that you have to understand why they
think that or why are they uncontrollable. They could be uncontrollable on their wishes to settle
or on an emotional basis. On an emotional basis, you really have to carefully talk to the counselers
too. Is there anything you could do to have them to be under a control? So let's talk about tips now
for dealing with these difficult parties. Here are some tips depending on the circumstance,
depending on what the difficulty is. You're going to have to craft your own and think on your fee,
but for the difficult party, you're going to just have to agree that there's going to be extra time.
You have to spend extra time with that party so you could really understand their motivation,
the source, and see why they are being difficult. The other one, so these are going to spend extra
time with the difficult party, is that you can expect delays. So if you think you're going to
finish that mediation in two hours, you've got to add another 30 minutes or an hour because of the
nature of the difficult party. And the next tip is in the premediation conference, get
background from the attorney on how to approach that difficult client. That attorney knows that
client. You don't as a mediator. You're just meeting them for the first time. So the attorney can
give you tips outside the presence of the client on how to deal with that mediator and how it has
worked for him or her in dealing with the client. Another tip is to not have joint sessions where
the emotions are so high or you have difficult parties because that will be counter-conductive
and the whole thing could go south. By joint session is they cannot be in the same room.
They cannot, even if you're on Zoom, put them in separate rooms. And in fact,
I mean, and mediation in person, I often ask them, is there any issue with parties because after
they meet in the common areas like getting lunch or in the hallway or whatever, I say,
you got to structure that so that there's no meaty because it could be volatile sometimes,
depending on the dispute. Some disputes are not emotional, some are very.
The other tip I will have is hear this difficult party out enough, but control the decorum and
the session. So it's important that you hear them out, but you're in control of the decorum,
of the integrity of the process. So it's important that you hear them out, but with respect and with
you're in control of the decorum. So in the right context, while showing respect, you have to assert
your position so that you can control the situation. Otherwise, it'll spiral out of control. It has to
be, of course, in the right context and while showing respect, but it is very important to
assert your position so that you can control the situation and move the negotiation into a productive
session. Of course, it all depends on the specific type of issue you're dealing with.
And again, it's, as I said before, it's important for the other sides to understand
each part of the position, not to agree with them, because a lot of times they're just going to
agree to disagree and that's really perfectly fine. Agree to disagree with the other sides,
but understand it so they know where they're coming from, why they're not offering the $20
million that you want, why they think it's near worth this other amount. So these are my
top tips for dealing with difficult parties. As I said, it's very fact specific, case specific,
but I hope generally they do, you will find some of them helpful.
Think we're reaching the end, so I want to thank you for your indulgence and in conclusion,
as you hope you've gathered that ADR is and is very invaluable for our justice system.
It's a win-win for everybody. It saves time and money for the court and the litigant,
and the courts have more resources. The litigants resolve their cases without the lay,
stress and expense of litigating and lost to court late. I think that the parts what's so
amazing about an ADR is that the parties resolve their disputes through ADR and generally are more
satisfied because they directly participate in working out the terms of their very customized
settlement agreement with the assistance of an experienced meeting leader. Thank you and this
concludes this presentation. You may be eligible for CLE credit in your state. Visit bhba.org
slash podcasts for more information.