• Advance Resolution: Close the Deal
    The key to a successful mediation is preparation. Counsel should arrive with a solid understanding of key facts and issues, a clear view of the clients’ goals and a proactive settlement strategy. Work with the mediator early to clarify all parties’ objectives, address potential settlement obstacles, identify available resources and pave the way for successful negotiations.  Importantly, attend the mediation ready to close a deal. Confirm Settlement Authority First, confirm settlement authority before arriving at the mediation. Identify the party representatives and, if applicable, insurance professionals who will attend the mediation with appropriate settlement authority. If the approval of an…
  • Advance Resolution: Develop an Action Plan
    Chart a path to a successful mediation. Attend with a solid understanding of key facts and issues and a clear view of the clients’ goals. Work with the mediator in advance to pave the way for productive negotiations by clarifying all parties’ objectives, addressing potential settlement obstacles and identifying available resources.  Further, counsel can gain an advantage over less prepared participants by arriving with an action plan. Consider timing, structure and proactive approaches. By outlining desired outcomes and negotiation strategies, counsel can drive discussions towards a favorable resolution. Start Strong To start, ask your client: What do you want? What…
  • Advance Resolution: Engage the Mediator
    Preparation is key to a successful mediation. Attend with a solid understanding of important facts and issues and a clear view of the clients’ goals.  Counsel can further increase the opportunities to informally resolve the dispute by working with the mediator early to pave the way for productive negotiations. Gain momentum through straightforward goals, streamlined data gathering, simplified problem solving and strategic conferences. Straightforward Goal Setting Encourage the mediator to use the talent and experience of all participating counsel to articulate goals and advance a clear and cost efficient resolution strategy. As a first step, assess if all necessary parties…
  • Advance Resolution: Ready Your Client
    Mediation allows disputing parties an opportunity to minimize risks, generate creative solutions and maintain control over the outcome of the dispute. The key to a successful mediation is preparation. This includes building client trust in advance of the session. Counsel should discuss goals, explore different resolution options and clarify the mediation process with clients in advance. Foster a unified team approach. Align client expectations and objectives to ensure smooth, productive negotiations. Identify Goals The first step is defining the client’s goals. While the aim of most mediations is to negotiate funds, clients may have additional objectives.  Often these goals concern timing.…
  • Advance Resolution: Know Your Case
    Mediation is a valuable alternative to litigation that empowers parties to control the outcome of their disputes while minimizing risks, expanding opportunities and optimizing results. Set the stage for productive negotiations. Counsel can build credibility through a solid grasp of pertinent facts and issues, the inclusion of all necessary players at mediation and a good understanding of the funding or insurance picture.  Verify Your Client’s Role First, verify your client’s role in the dispute.  If a written contract exists, does it accurately describe the parties’ roles in the dispute? For example, in a construction dispute, did your client perform any…
  • Advance Resolution: Your Roadmap to Successful Mediation
    Civil litigation is often expensive, time-consuming and stressful. Mediation is a compelling alternative that empowers parties to control the outcome of their disputes. The key is preparation. Here are the fundamental steps for counsel to advance a productive and successful mediation. Know Your Case. Before entering mediation, it’s essential for counsel to have a solid understanding of the case facts and issues. Verify key information, analyze evidence, involve all necessary parties and understand the insurance landscape before the mediation session. By being thoroughly prepared, counsel can effectively advocate for the clients’ interests and contribute to fruitful negotiations. Ready Your Client.…
  • Gonzalez v. Google LLC
    Today the Supreme Court of the United States heard arguments in the case of Gonzalez v. Google LLC and the internet is nervous. The case revolves around YouTube’s algorithms and whether they should be held liable for their suggested video content. Typically, websites are protected under section 230 of the Communications Decency Act of 1996, though the limits are being tested with greater frequency. Gonzalez aims to hold YouTube’s parent company, Google, responsible for aiding and abetting ISIS in their 2015 Paris attack under the U.S. Anti-Terrorism Act. Various commentators believe that a ruling overturning the lower court’s decision in favor of…
  • Good neighbors: ADR and affordable housing
    Neighborhood conflicts concerning housing, construction, and land use are some of the most contested areas of public life and law.  Disputes can clog city offices and state courts. Solutions through mediation and ADR can clear backlogs, create healthier communities, create jobs and save the state millions of dollars.   The American Bar Association hosted a webinar last week on affordable housing solutions and ADR, particularly in conjunction with community mediation centers. Community Mediation Centers came out of the 1964 Civil Rights Act, when the Community Relations Service was created within the Department of Justice. Originally called Neighborhood Justice Centers, these…
  • Special Masters: the court’s (not so) secret weapon
    “For more than twenty years, responses to questions about my career often drew blank looks, followed by: “What do you do exactly?” Donald Trump changed that. Now, most people seem to understand that a special master is an independent arbiter appointed by the court to support the management and resolution of complex civil cases.” Read the full article here.  
  • Natural disasters compound construction defects
    Torrential rains in Italy this last week triggered landslides on the island of Ischia, Italy. Densely populated and known for its thermal baths, the island also sits in an earthquake zone. Proper construction methods take these environmental factors into account. However, it appears that the race for construction to catch up with population growth may have resulted in corners being cut. Multiple structures were destroyed last weekend in the port city of Casamicciola Terme. Several people are still missing. The fallout from this most recent disaster will require people with different, and perhaps conflicting, goals to come together to create…
  • American Education Week 2022
    November 13th – November 19th is American Education Week and certainly education is something to be celebrated. This year, that celebration includes recognizing how education in America has changed. Schooling of every level, from preschool to post graduate, has been affected by the lasting effects of the Covid 19 pandemic. It will be years before the sum total of these effects on professions that require highly educated talent to operate properly will be fully understood. Even before Covid, law schools saw decreasing numbers of first year students. For many perspective students, the debt load incurred in pursuing a law degree…
  • The Advantages of Virtual ADR
    High emotion cases, such as wrongful death, medical malpractice, or family disputes may be more challenging to negotiate remotely.  I have settled many cases the last two years over the Zoom video conferencing platform, including emotional cases involving highly personal issues, multiparty construction cases, and business disputes. A recent Daily Journal article looks at how virtual mediation has helped address the backlog of probate and trust cases, and how an April 2021 California Court ruling has impacted the mediation landscape. Read the article here.
  • Simplified Problem Solving
    “Anne Goyette is unlike many mediators and arbitrators because she has spent much of her 23 years in the field working as a special master, either appointed by a judge or chosen by parties to take on management of complex litigation to assist the court.” On Friday, October 1 2021, Don DeBenedictis interviewed Anne Lawlor Goyette on handling special cases. View the full article here.
  • Resolutions: A Conversation About Mediation Strategies
    Resolutions · Take 5: A Conversation About Mediation Strategies Resolution: A Podcast About Dispute Resolution and Prevention is a bi-monthly podcast hosted by rotating staff at the American Bar Association. In this episode, Resolution’s newest host, Caroline Stauffer, speaks with Anne Goyette, Arbitrator, Mediator, and principal of Griffiths Goyette about strategic approaches to mediation. This podcast was originally published on the American Bar Association Podcast Hub on Tuesday, July 13, 2021.
  • Take Five
    Litigation can be expensive, time consuming and stress inducing. Covid-19 restrictions are exacerbating these conditions. Mediation is an alternative that empowers litigants,  counsel and insurance professionals to minimize risks, expand options and optimize  outcomes. Rather than relying on the opinions and biases of judges and jurors, prepared  mediation participants gain the opportunity to control and shape the resolution of their  dispute.  Here are five key steps to a productive and successful mediation. Know Your Case  Counsel should develop a solid understanding of the dispute’s pertinent facts and  issues well in advance of mediation. A judicially appointed referee or Special Master …
  • Virtual ADR Relief Zooming In
    Covid-19 has closed businesses, moved school instruction online, delayed surgeries and created suffering and health fears throughout the United States. To say the least, the last two months have been very challenging. With civil trials suspended, Covid-19 also has significantly disrupted civil litigation. It is unclear how civil jury trials will be handled once the stay in place orders are lifted. How will courts address social distancing concerns to safeguard court personnel, attorneys and litigants? Will courts assemble jurors before widespread testing or vaccines are available? Criminal matters, unlawful detainers and preference cases likely will be prioritized. Meanwhile, the backlog of civil cases is growing. Covid-19 related litigation itself is expected to add significantly to the courts’ already heavy caseload. Further continuances of existing court dates are anticipated. More delays and increased litigation costs will follow.
  • Special Masters streamline the dispute resolution process, minimizing the costs, delays and risks of complex cases such as construction defects
    The fire started just above the first floor ceiling. Workers renovating the seven-story historic hotel fled the smoke-filled stairway, stumbling and falling on the way. Aerosol paint cans exploded from the heat, and the fire grew to three alarms. Firefighters blasted the 100-year-old building with water and successfully extinguished the flames. Unfortunately, the hotel suffered extensive damage from the fire, smoke and suppression efforts. Rain later doused the interiors through the open roof and windows. Mold grew. Lead paint flaked and peeled off the walls. The hotel owners performed millions in repairs. They resolved an insurance claim with their carrier and then sued the renovation contractor for remaining fire and breach of contract damages. The general contractor in turn sued the subcontractors suspected of starting the fire and their insurance carriers. Liability was hotly contested. The general placed a lien against the building, served stop notices and sued the hotel group for unpaid contract balances; the subcontractors also sued for sums due. Five actions for personal injuries and subrogation followed. Two years after the initial filing, significant investigation and litigation costs had been incurred. Counsel disagreed on how to address “threshold” legal and factual issues. The parties anticipated taking roughly 70 percipient depositions and filing motions to bifurcate and/or motions for summary adjudication/judgment. The Superior Court consolidated the eight cases, set, and then vacated, a trial date. The Superior Court subsequently appointed a Special Master.
  • Building Settlements in Construction-Defect Cases
    Passing the buck is the usual defense strategy, and a Special Master may be needed to steer these cases towards settlement. Construction-defect cases typically involve large numbers of parties, attorneys, insurance companies and experts. Each player has its own goals. The property owner wants maximum funds to repair defects and cover losses. The builder disputes both plaintiff’s repair scope and associated costs and seeks to pass plaintiff’s claims onto subcontractors. The subcontractors concentrate on minimizing alleged damages and shifting responsibility. The design professionals distinguish between construction errors and design issues. Attorneys challenge pleadings, decipher contracts, pursue claims and assert defenses.…
  • Complex neighbors: Santa Cruz & Santa Clara
    Santa Clara County is the most populated county in the San Francisco Bay Area with close to 1.9 million people. The county is home to cutting edge Silicon Valley and boasts a median household income of $93,854. Santa Clara County Superior Court had 24,576 civil filings in 2013-2014 with roughly 250 complex civil cases. The court’s 2015-2016 fiscal year budget is just over $103 million. In comparison, Santa Cruz County has an estimated population of 272,000. The county is known for beautiful beaches and agriculture and has a median household income of $66,923. In 2013-14, Santa Cruz had 3,562 civil…
  • Effective Settlement Strategies for Construction Defect Cases
    No one starts a war, or rather, no one in his senses ought to do so, without first being clear in his mind what he intends to achieve by that war and how he intends to conduct it. The enemy of a good plan is the dream of a perfect plan. – Karl von Clausewitz (1780-1831) Construction defect cases typically involve large numbers of parties, attorneys, insurance companies and experts. Each player has its own goals. The property owner wants maximum funds to repair defects and cover losses. The builder disputes both plaintiff’s repair scope and associated costs and seeks…
  • Using Special Masters in Santa Clara
    Complex construction defect cases often require a neutral to work with parties during the pretrial phase Litigationa Multiparty construction defect cases often require exceptional judicial management because they involve complex factual and legal issues and include large numbers of parties, attorneys, insurance companies and experts. Litigants frequently retain a referee or special master to work with the complex litigation judge by providing case management, addressing discovery disputes and/or facilitating settlements of these cases. This article is the fifth in a series that analyzes how different Bay Area courts utilize special masters in complex construction defect cases. Santa Clara County Superior…
April 19, 2024
Advance Resolution: Close the Deal

The key to a successful mediation is preparation. Counsel should arrive with a solid understanding of key facts and issues, a clear view of the clients’ goals and a proactive settlement strategy. Work with the mediator early to clarify all parties’ objectives, address potential settlement obstacles, identify available resources and pave the way for successful negotiations.  Importantly, attend the mediation ready to close a deal. Confirm Settlement Authority First, confirm settlement authority before arriving at the mediation. Identify the party representatives and, if applicable, insurance professionals who will attend the mediation with appropriate settlement authority. If the approval of an…

The key to a successful mediation is preparation. Counsel should arrive with a solid understanding of key facts and issues, a clear view of the clients’ goals and a proactive settlement strategy. Work with the mediator early to clarify all parties’ objectives, address potential settlement obstacles, identify available resources and pave the way for successful negotiations. 

Importantly, attend the mediation ready to close a deal.


Confirm Settlement Authority

First, confirm settlement authority before arriving at the mediation. Identify the party representatives and, if applicable, insurance professionals who will attend the mediation with appropriate settlement authority. If the approval of an elected board or another agency is required to finalize a deal, discuss the approval process with the mediator and/ or your opponents before the mediation.

In addition, address any additional issues that may impact the parties’ ability to finalize an agreement. For example, if a key player is bankrupt, a suspended corporation, or a juvenile, take the necessary legal  steps to address the situation and secure authority to close a deal. Perhaps a non-party’s signature is needed to finalize an agreement. 

As to this last point, take a step back and look at potential third parties whose involvement might expand resolution options. For example, three neighboring townhomes had construction defects. Two owners sued the builder, but the third owner wanted nothing to do with the litigation. As mediation approached, counsel realized that the most effective and efficient repair required access to the third townhome. The parties approached the third owner before mediation, worked out a plan with their neighbors and then negotiated a global resolution at mediation based on the preferred repair scope.

Take the necessary steps to ensure that the people seated at the settlement table are the appropriate representatives to finalize an agreement.


Consider Settlement Terms

Second, evaluate potential settlement terms. Prepare a draft settlement agreement before the mediation. Analyze the possible legal and practical impact of clauses that the parties would like in the final document. Will there be a mutual release? Non-disparagement clause? Confidentiality provision? What about payment security or a post settlement arbitration provision? In lieu of a strictly cash settlement, the draft may identify other types of compensation, such as complimentary services, an apology, the write off of money owed or a resignation letter. Take the time to revisit the client’s goals and consider the language of a potential settlement agreement.

Some attorneys prefer not to share a draft agreement before mediation. They believe they gain more leverage by waiting to raise confidentiality or nondisclosure issues until after an agreement in principle is reached. Others prefer to address key provisions from the start and work through any potential roadblocks while negotiating settlement numbers.

Whether counsel decides to share a draft agreement before or after an agreement in principle is reached, bring a draft agreement to the mediation. The document can provide the structure for negotiations and closing discussions. It also may create an efficient opportunity to finalize an agreement while all of the players are in one spot. The defense can close their files quicker, reducing the slow drip of attorney fees incurred in chasing signatures. Plaintiffs can deliver a fully executed settlement agreement and potentially shorten the time until payment.


Sign Sign Sign

Third, if an agreement is reached at mediation, avoid buyer’s remorse. Be prepared to sign a settlement agreement or a Memorandum of Understanding before leaving the mediation. Consider including a term that gives the court jurisdiction to enforce the settlement. At a minimum, ask the mediator to confirm any agreements reached in a written email to all counsel to avoid any later confusion.


Consider Plan B

Finally, if the parties do not reach a resolution, plan your next move. Is there any additional information that will help the parties bridge the gap? Should the parties re-convene after a particular motion ruling or event? Will the parties consider a Mediator’s Proposal? Enlist the mediator to schedule a follow up discussion or check in to see if additional resolution options emerge or the parties’ positions shift. Even if no agreement is reached at mediation, it is fairly common for additional settlement avenues to open after meaningful settlement discussions.


Conclusion

Advanced preparation brings significant value to settlement negotiations and ultimately allows all mediation participants to minimize risks, expand options and optimize the resolution of their client’s civil disputes. Enhance settlement opportunities by arriving at the mediation ready to close a deal.

 

Griffiths • Goyette are Leading ADR Providers Since 1993. Principal Anne M. Lawlor Goyette has streamlined and resolved thousands of civil disputes in California and nationwide as a full time Mediator, Court Appointed Neutral and Arbitrator.

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April 18, 2024
Advance Resolution: Develop an Action Plan

Chart a path to a successful mediation. Attend with a solid understanding of key facts and issues and a clear view of the clients’ goals. Work with the mediator in advance to pave the way for productive negotiations by clarifying all parties’ objectives, addressing potential settlement obstacles and identifying available resources.  Further, counsel can gain an advantage over less prepared participants by arriving with an action plan. Consider timing, structure and proactive approaches. By outlining desired outcomes and negotiation strategies, counsel can drive discussions towards a favorable resolution. Start Strong To start, ask your client: What do you want? What…

Chart a path to a successful mediation. Attend with a solid understanding of key facts and issues and a clear view of the clients’ goals. Work with the mediator in advance to pave the way for productive negotiations by clarifying all parties’ objectives, addressing potential settlement obstacles and identifying available resources. 

Further, counsel can gain an advantage over less prepared participants by arriving with an action plan. Consider timing, structure and proactive approaches. By outlining desired outcomes and negotiation strategies, counsel can drive discussions towards a favorable resolution.


Start Strong

To start, ask your client: What do you want? What are your goals? Continue to discuss objectives with your client as the matter proceeds. Mounting costs, other commitments and the stress of litigation can moderate the views of even the most aggressive or irate client. 

With an understanding of the client’s goals, develop a range of acceptable outcomes before mediation. Analyze factors that may impact the discussions, such as key facts and legal issues, similar deals, any previous experience with counsel or principals, a fast approaching trial date, anticipated delays, need for confidentiality, political elections and so on. Realistically, in what range do you think the parties will reach a settlement? Also, review alternatives to a brokered deal before mediation. What happens if the case does not settle? Assess the point at which the client is uninterested in making a deal. 

Then, looking at all of these factors, explore an opening position. Plot a course that will allow you to strategically move from offer to offer/demand to demand towards an acceptable endgame. Anchor the negotiations to set the parameters of the negotiations. The first demand and first offer basically set the high and low limits of the discussions. Ideally, your opening position is defensible and leaves room for negotiation. An unrealistic demand or offer can alienate the recipient and end the negotiations – or at least push the parties into expensive and perhaps unnecessary discovery and litigation. 

Consider the best timing for service of the initial settlement demand or offer. In cases involving business or insured claims, a demand generally should be served four to six weeks in advance of the mediation to allow counsel sufficient time to obtain appropriate authority from their client or insurance carrier. Having received a demand, counsel in an emotionally charged personal injury or wrongful death case may opt to withhold an offer until the plaintiff has had an opportunity to share her story. 


Be Proactive

Give some thought as to how you will move from offer to offer or demand to demand, so that you are not completely reactive in settlement negotiations. Take time before mediation to privately define the outcome you hope to achieve and outline a basic negotiation strategy. 

Counsel might consider anchoring with either a settlement demand or an offer backed by an explanation of damages, and then make moderate, measured moves until the opponent reaches a certain threshold. Alternatively, counsel might begin with aggressive moves and then signal an end point with smaller and smaller steps. Maybe counsel plans her moves based on past negotiations with her opponent.

Sometimes, the traditional practice of demand/offer, demand/offer loses momentum, leaving each side unclear as to the other side’s settlement range – despite hours of negotiation. Counsel’s strategy could include the use of settlement brackets if the parties are not within a particular range after a certain number of exchanges. 

Bracketing is a technique that allows negotiators to communicate their settlement ranges while maintaining their formal settlement positions. The proposing party can show it is willing to advance the discussion, perhaps with a significantly large move, if the other side reciprocates. If the bracket is rejected, neither party has compromised its “formal” settlement position. If the bracket is accepted, the bracket numbers become “real numbers.” The goal is to narrow the range of the negotiations and bring the parties closer to a final number.

For example, the plaintiff offers to reduce his demand to $ 2 million if defense raises the offer to $ 1 million. The defendant can accept the proposed bracket or reject the bracket and request a firm demand, simply make a firm offer or counter with a different bracket (e.g. – if plaintiff goes to $ 1.5 million, defendant will go to $ 500,000.) Regardless, the plaintiff is signaling that he is prepared to resolve the matter somewhere between $ 1 million and $ 2 million. 

Brackets are one example of conditional offers designed to keep the parties talking and avoid impasse. Another type of conditional offer involves tying your settlement position to a specific contribution by another party. For example, a defendant may agree to offer $ 100,000 if a co-defendant agrees to match his contribution. Or the lead defendant may offer to contribute 20% of a global settlement up to a specific sum if the remaining parties fund the difference. Or the plaintiff may issue individual demands to numerous parties that are contingent on a global resolution. Like brackets, these types of conditional offers are tools to advance productive discussions.

When preparing for mediation, privately inventory possible tools to further settlement efforts if negotiations hit an impasse. Would an Offer of Judgment add credibility to a party’s position and encourage settlement? What about a Mediator’s Proposal? 


Build Coalitions

In multiple party negotiations, ask: ”What do the parties want? Who can we team up with to further productive negotiation to our benefit?” Parties with common interests can increase their influence by joining forces with other parties who, at least for the time being, share similar goals and interests. Individuals negotiating as part of a single, large group may gain more leverage in the discussions and secure a more beneficial deal for the coalition members. 

Through joint defense agreements, parties also can reduce costs by coordinating strategy and sharing information. These agreements allow the parties to share otherwise confidential information or work product without waiving applicable protections. That said, before entering into a joint defense agreement, research how the courts in the applicable jurisdiction view joint defense agreements – especially any impact on privilege protections and conflict of interest concerns. At a minimum, the joint defense agreement should disclaim any attorney-client relationship between an attorney and any signatory to the agreement other than the attorney’s specifically named client.

An effective negotiation strategy in multiple party disputes considers both the benefits of joining a coalition and the potential dangers of being excluded from a coalition.


Sequence Negotiations

A global settlement in a multiple party dispute involves a series of smaller settlements with individual parties and coalitions. Conquer the chaos of multiple party negotiations by developing an early action plan for sequencing the discussions. 

In MDL litigation, counsel may want to start negotiations with a focus on resolving the claims that present the most exposure or maybe those that present the least. Perhaps pursuing inventory settlements with individual firms or the resolution of a specific category of injury would be more productive.

In individual cases with multiple parties, peripheral parties often want to know: Can I get out early? Do I have to go all the way through discovery and motions even though my client only played a very minor role in the dispute? Is there an early exit strategy? The plaintiff may agree to settle with either a particular individual, parties involved in a discrete issue or around a “problem” player. Conversely, the plaintiff may be set on a global agreement. 

In construction defect cases, the general contractor or developer typically  takes the lead in sequencing settlement discussions.

One approach to sequencing is to “Pay and Chase.” Here, the lead defense reaches a settlement with the plaintiff and then, with damages capped, confidently issues realistic demands to the remaining parties to fund a global deal. This approach can preserve an ongoing business or personal relationship between the lead parties. It can minimize costs and exposures and may be especially productive in a dispute with underinsured or funded parties. The downside with this approach is lead defense takes on the risk of having to fund a large share of the final settlement. For instance, once the plaintiff settles out, the remaining parties may view the lead defense as a less threatening claimant and lower their settlement evaluations.

A more popular approach is for the lead defense to focus first on raising money before making a global offer. The lead defendant may divide the other defense parties into groups. She then negotiates first with the more liable parties and then moves to the less liable parties. Or vice versa. She may focus on parties involved with one claim or a series of related claims that potentially could be settled separately from the rest of the group. Negotiating first with defense parties benefits the lead counsel by providing a solid understanding of available funding and allows counsel to approach the plaintiff with funds already secured. On the downside, these sequenced negotiations tend to be very time consuming. As talks continue, costs soar. The additional expense and delay can diminish any good will between the lead parties. At some point, once the lead defense has a better understanding of the final settlement range, he may cut deals with particular groups or individual parties. These parties may be more willing to put their best dollar on the table in exchange for an early dismissal. As defense parties begin leaving the case, previously recalcitrant parties often become much more interested in pursuing a settlement.


Conclusion

The most important lesson here is this: Execute an Action Plan. Effective negotiation strategies that benefit your client require you to start early, be proactive and, in multiparty cases, consider building coalitions and strategically sequencing negotiations.

 

Griffiths • Goyette are Leading ADR Providers Since 1993. Principal Anne M. Lawlor Goyette has streamlined and resolved thousands of civil disputes in California and nationwide as a full time Mediator, Court Appointed Neutral and Arbitrator.

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April 17, 2024
Advance Resolution: Engage the Mediator

Preparation is key to a successful mediation. Attend with a solid understanding of important facts and issues and a clear view of the clients’ goals.  Counsel can further increase the opportunities to informally resolve the dispute by working with the mediator early to pave the way for productive negotiations. Gain momentum through straightforward goals, streamlined data gathering, simplified problem solving and strategic conferences. Straightforward Goal Setting Encourage the mediator to use the talent and experience of all participating counsel to articulate goals and advance a clear and cost efficient resolution strategy. As a first step, assess if all necessary parties…

Preparation is key to a successful mediation. Attend with a solid understanding of important facts and issues and a clear view of the clients’ goals. 

Counsel can further increase the opportunities to informally resolve the dispute by working with the mediator early to pave the way for productive negotiations. Gain momentum through straightforward goals, streamlined data gathering, simplified problem solving and strategic conferences.


Straightforward Goal Setting

Encourage the mediator to use the talent and experience of all participating counsel to articulate goals and advance a clear and cost efficient resolution strategy. As a first step, assess if all necessary parties are at the table. Who will attend the mediation session? If applicable, what is the status of any insurance tenders? Are there any other relevant disputes pending? If so, will these be included in the settlement discussions? If a relevant dispute is not addressed, what impact will its exclusion have on settlement efforts?

In a multiple party case, is the plaintiff seeking a global resolution, or will he consider individual or small group settlements?

Ascertain if any additional information is needed for meaningful settlement discussions. For instance, will an accounting or real estate appraisal allow the parties to confidentially discuss damages? Have the parties produced sufficient backup documentation to support their claims and defenses? 

How much time do the parties reasonably need to prepare for meaningful settlement discussions? Is there an anticipated delay in securing or analyzing any necessary information? Determine if there is any event or deadline that may impact productive discussions, such as an upcoming summary judgment motion, potential real estate sale or fast approaching trial date. Adjust the timing of the mediation accordingly.

Identify an appropriate venue for the mediation. Perhaps an in person session is appropriate to resolve a large inventory of claims or manage a difficult, unfocused or emotional client. On the other hand, a remote mediation may be the ideal set up for a purely commercial dispute or a large construction dispute. 


Streamlined Data Gathering

Engage the mediator to assist with prioritizing and streamlining the production of key information. Litigation or arbitration preparation aside, what information do the parties need specifically for productive negotiations? If discovery is voluminous, will the parties agree to deposit relevant information at a single location without formal discovery?

Perhaps the parties will select a handful of depositions to explore narrowly defined issues.

If a key defendant claims that he has no assets to fund a settlement, is his verified declaration sufficient support to engage the players in settlement talks? Perhaps an informal meeting to review his financial documents and ask questions will address any concerns before mediation. Will the parties stipulate to the production of confidential documents under a protective order?


Simplified Problem Solving

The right experts clarify claims, defenses, risks and resolution options in disputes involving technical,  scientific, or other complex issues. Work with the mediator to define the experts’ most effective role in the mediation process.

Before mediation, counsel may allow their consultants to share their data and views with other consultants, with or without attorney involvement. Fairly candid expert exchanges frequently occur under the mediation privilege and before any formal expert disclosures and depositions. In construction cases, experts often analyze different repair scopes to bridge the gaps in the parties’ positions. 

In some cases, parties jointly retain a neutral expert. An objective, reliable appraisal, for instance, can be the catalyst to close a real property dispute. A respected professor’s geotechnical review may break the logjam regarding the cause of extensive cracking throughout a shopping center. A jointly retained financial expert can untangle complicated financial arrangements. 

Alternatively, the parties may opt to share individual expert reports solely with the mediator. As an example, expert summaries of treating physicians’ reports in medical product cases can be tremendously helpful to the mediator in preparing for productive negotiations. 

During a mediation, experts can effectively highlight the strengths and weaknesses of the parties’ positions, generate options, clarify areas of agreement, narrow areas of disagreement and provide the decision makers with a preview of the witnesses’ effectiveness at trial. Individuals who previously dismissed legal theories may sit up and pay attention to an objective, scientific explanation of events. Parties may realize that the jury likely will miss important technical nuances or overlook sound science and instead decide a case based on personal bias or incorrect assumptions. Any of these scenarios can generate productive settlement discussions.


Strategic Conferencing

Engage the mediator to conduct strategic one-on-one conferences with each party or small groups before mediation. These conferences may involve just the attorneys or any combination of attorneys, insurance professionals, coverage counsel, expert consultants and/or principals. 

The conferences allow the participants to privately discuss their specific goals, identify obstacles and explore resources in preparation for  productive negotiations. Participants can raise concerns about unrealistic client expectations or difficult personalities, highlight the potential impact of a personal message or apology, flag  emotional triggers, identify insurance or funding problems and explore available resources for resolution. The mediator and counsel can strategize on an effective approach to address these issues, avoid emotional outbursts and pave a path to productive dialogue at mediation.  


Conclusion

As you prepare for mediation, gain momentum by engaging the mediator early to execute clear and purposeful action and effectively advance dispute resolution

 

Griffiths • Goyette are Leading ADR Providers Since 1993. Principal Anne M. Lawlor Goyette has streamlined and resolved thousands of civil disputes in California and nationwide as a full time Mediator, Court Appointed Neutral and Arbitrator.

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April 16, 2024
Advance Resolution: Ready Your Client

Mediation allows disputing parties an opportunity to minimize risks, generate creative solutions and maintain control over the outcome of the dispute. The key to a successful mediation is preparation. This includes building client trust in advance of the session. Counsel should discuss goals, explore different resolution options and clarify the mediation process with clients in advance. Foster a unified team approach. Align client expectations and objectives to ensure smooth, productive negotiations. Identify Goals The first step is defining the client’s goals. While the aim of most mediations is to negotiate funds, clients may have additional objectives.  Often these goals concern timing.…

Mediation allows disputing parties an opportunity to minimize risks, generate creative solutions and maintain control over the outcome of the dispute. The key to a successful mediation is preparation. This includes building client trust in advance of the session. Counsel should discuss goals, explore different resolution options and clarify the mediation process with clients in advance. Foster a unified team approach. Align client expectations and objectives to ensure smooth, productive negotiations.


Identify Goals

The first step is defining the client’s goals. While the aim of most mediations is to negotiate funds, clients may have additional objectives. 

Often these goals concern timing. For instance, there may be advantages to scheduling the resolution around a particular event. Perhaps the client is hoping to pursue a lucrative business opportunity but can only do so if the dispute is resolved by a certain date. In some cases, a ruling on a pending motion or trial in a separate lawsuit can strengthen or diminish a client’s position. Is there an ongoing personal or business relationship that the parties want to preserve with a fast resolution? 

Other goals may include emotional recognition through an oral or written apology, a published retraction or even a commemorative plaque. Alternatively, the client may want a specific course of action, like the removal of a neighbor’s solar panel or access to a favorite hiking path. 

Continue to discuss objectives with your clients as the case proceeds. Mounting costs, other commitments and the stress of litigation may moderate even the most aggressive or irate client’s goals.  


Explore the Best Alternatives to a Negotiated Agreement

To develop an effective strategy, explore alternatives to a negotiated agreement by asking: What happens if the case does not settle?

  • Will your client lose an important business opportunity or irreparably damage an important relationship?
  • Will the litigation accelerate? Will the participants name new parties, vigorously conduct discovery, file dispositive motions? 
  • Will your opponent pursue a published court decision to create a precedent or generate publicity of the dispute?
  • Will the parties try to engage other influencers in the dialogue? 
  • If the case goes to trial, rather than ending a dispute, will a verdict likely result in post trial motions and lengthy appeals? 
  • Will the victor at trial actually be able to recoup any costs or collect on a judgment? 

Gain a reasonable view of case settlement value and potential walk away range by evaluating possible outcomes if the dispute does not settle at mediation. 

Also consider your opponent’s goals as well as their options if the dispute does not settle: What is their best day? What is their worst day?


Clarify the Mediation Process

While most lawyers have participated in mediation, clients may be unfamiliar with the process. Explain mediation protections and structure in advance to increase the client’s confidence and further productive negotiations.

Confidentiality Protections

Confidentiality is an important component of mediation. Generally, documents prepared for mediation and oral communications during mediation are protected from disclosure in other judicial proceedings. The purpose of confidentiality protection is to encourage meaningful settlement discussions. Confidentiality prompts the parties to put their cards on the table and resolve their dispute by themselves, without formal litigation. 

Confidentiality protections vary from jurisdiction to jurisdiction. Discuss statutory and contractual confidentiality protections applicable to your negotiations with your client. 

Joint and Separate Sessions

Traditionally, mediations begin with a joint session in which the mediator introduces  the participants and discusses the rules and any agreements concerning the mediation. If the parties elect to give opening statements in the joint session, it is important to manage your client’s expectations. Explain, in advance, that each side will present its best case scenario and will aggressively focus on strengths and minimize any weaknesses. 

Today, many parties opt out of opening statements to avoid the possibility of igniting emotions, thereby further alienating the parties and complicating settlement efforts. Others see opening statements as a golden opportunity for the counsel or client to directly connect with decision makers. 

After the opening session, the parties usually move into separate rooms to privately explore settlement opportunities. The mediator may bring the parties and/or the attorneys together again for further joint negotiations or to finalize any settlement agreement. 

In Person and Remote Locations

Mediations held in person at an office or other facility allow the participants to interact informally. The parties can read body language, look each other directly in the eye, express empathy with a pat on the back and seal a settlement with a handshake. The in person setting also can inspire an indecisive client to become more focused and engaged in the process. Furthermore, a decision maker who invests the time, money and energy to travel to a distant mediation often gains credibility and demonstrates that she is serious about trying to reach a deal. 

Many mediators started hosting mediation over video conferencing platforms during the COVID-19 pandemic. The Zoom video platform is easy to use and a simple way to navigate these sessions. All participants need is a strong and secure Wi-Fi connection, a computer with a camera, the Zoom app, and some basic instruction to gain confidence in the process. The mediator guides participants through virtual rooms and advances settlements through confidential negotiations. 

While virtual sessions are not perfect substitutes for in person negotiations or hearings, there are benefits to the technology. First, remote meetings significantly reduce travel costs and time commitments. This makes it easier to schedule meetings and include all decision makers. Also, while participants cannot physically approach others, they can simultaneously see each other’s reactions onscreen and often directly address arguments to principal decision makers.

High emotion cases, such as wrongful death and medical malpractice cases, may be more challenging to negotiate remotely. Business and commercial cases may be more suitable for remote resolution. Walk through the options and talk to your mediator regarding her experience in resolving cases through virtual mediation.

Virtual ADR Relief Zooming In


Conclusion

Prepare for mediation by building your client’s trust through open and consistent communication. Clarify goals. Explore the alternatives to a brokered settlement. Demystify the mediation process. A team approach enhances meaningful settlement discussions and increases the likelihood of a favorable outcome.

 

Griffiths • Goyette are Leading ADR Providers Since 1993. Principal Anne M. Lawlor Goyette has streamlined and resolved thousands of civil disputes in California and nationwide as a full time Mediator, Court Appointed Neutral and Arbitrator.

 

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April 15, 2024
Advance Resolution: Know Your Case

Mediation is a valuable alternative to litigation that empowers parties to control the outcome of their disputes while minimizing risks, expanding opportunities and optimizing results. Set the stage for productive negotiations. Counsel can build credibility through a solid grasp of pertinent facts and issues, the inclusion of all necessary players at mediation and a good understanding of the funding or insurance picture.  Verify Your Client’s Role First, verify your client’s role in the dispute.  If a written contract exists, does it accurately describe the parties’ roles in the dispute? For example, in a construction dispute, did your client perform any…

Mediation is a valuable alternative to litigation that empowers parties to control the outcome of their disputes while minimizing risks, expanding opportunities and optimizing results. Set the stage for productive negotiations. Counsel can build credibility through a solid grasp of pertinent facts and issues, the inclusion of all necessary players at mediation and a good understanding of the funding or insurance picture. 


Verify Your Client’s Role

First, verify your client’s role in the dispute. 

If a written contract exists, does it accurately describe the parties’ roles in the dispute? For example, in a construction dispute, did your client perform any additional work beyond the contract scope? Will you be able to position your client as a peripheral party or do you need a different strategy to address more significant liability exposure? An attorney representing a drywaller in a water infiltration case, for instance, likely will approach negotiations from a different angle than the attorney who represents the window installer. Avoid learning during mediation that your drywaller client actually installed the windows. 

In a commercial lease dispute, did your client make all payments? If not, why?

If a client is seeking support payments in a domestic partnership split, what is the client’s marital status? Discovering your client’s “secret marriage” during the mediation can complicate negotiations. 

Navigate discussions with clarity and confidence. Verify your client’s role in the dispute before negotiations begin. Otherwise, your opponent’s production of evidence countering the client’s position at mediation can hurt your credibility and potentially damage the settlement value of your case. 


Analyze Key Evidence

Second, familiarize yourself with relevant key evidence. 

In a medical product or personal injury case, this may include reviewing the medical records of the treating physicians to confirm that the treating doctors’ diagnoses line up. Determine whether your client has previous similar injuries, surgeries, treatments, or diagnoses. What is the potential impact of any pre-existing medical conditions on the negotiations? Are there significant medical liens? Will an Independent Medical Examination advance settlement discussions? 

In commercial disputes, review contract documents. Analyze the impact of  indemnity, attorney fee, force majeure, insurance requirements and other relevant  clauses. 

After evaluating key evidence, include pertinent documents or relevant portions of documents in the mediation brief. 


Avoid the “Empty Chair”

One misstep that can derail mediation efforts is failing to involve all necessary parties. The absence of a key participant can create gaps in discussions and lead to disputes over responsibility and contribution. 

Determine if there are other potentially liable parties. If so, do the claims merit expanding the dispute to include them in the discussions? 

Along this line, evaluate the viability of the parties. Are they still in business? In a commercial dispute, confirm that the correct partnership, limited liability company, corporation or other business entities are involved. Do the parties have adequate resources to contribute towards a settlement, pursue a claim all the way to trial or pay a judgment?

Bring any additional parties into the discussions as soon as possible. Avoid the equivalent of an “empty chair” at mediation where parties push the responsibility off to a missing party or refuse to make meaningful offers until they know how many parties will be contributing. 

Finally, are there third parties whose assistance is needed to prove your case or effectuate a reasonable settlement? For example, to effectuate a compromise repair, experts may want to install piezometers on a neighbor’s property in a landslide dispute or access a third party’s shared wall in a construction defect case. Develop an action plan on how to approach and involve any third party before the mediation.


Understand the Insurance Picture

In many disputes, insurance coverage plays a pivotal role in determining settlement outcomes. Familiarize yourself with the insurance picture early to anticipate potential hurdles and devise strategic approaches to overcome them. 

Request applicable insurance information and identify the defending carriers. Know who you are dealing with, including the insurance companies who will potentially fund any settlement. It is not unusual for a single carrier to defend multiple parties in a complex case, a scenario that may impact settlement dynamics. 

Once the relevant records are gathered, analyze potential coverage issues. 

Large disputes often involve time on risk disagreements, exhaustion questions, self-insured retention, consent provisions and other issues that influence negotiations. To prepare for such complications, consider retaining coverage counsel when the stakes are high or insurance coverage is uncertain. Don’t leave the coverage questions entirely to the litigation side of the case.

That said, be strategic. If a case has not been filed or insurance disclosures are not required, weigh the pros and cons of sharing coverage details. Perhaps the policy limits are inadequate and disclosure will motivate the parties to reach a quick resolution. Or perhaps the coverage is extensive and there is concern that disclosure will artificially inflate the settlement demand. 

The message here is this: Understand the insurance picture. You may not resolve the myriad of insurance issues before mediation. However, having identified the issues and engaged the decision makers, you can factor this information into case value determinations and settlement strategies. Perhaps a policy limits demand is needed to optimize settlement funds from a burning insurance policy in a high exposure case. Or a coverage exclusion creates an unacceptable “bet the business” risk for a struggling business that supports early mediation. Or maybe the primary limits are inadequate and excess carriers must be included in any meaningful settlement discussions. A proactive approach to understanding the insurance landscape enables the parties and their insurance carriers to optimize settlement outcomes and mitigate risks effectively.


Conclusion

As you prepare for mediation, remember that credibility is currency. By diligently verifying your client’s role, analyzing key evidence, ensuring the presence of all relevant parties and understanding applicable insurance coverage, you lay the groundwork for successful negotiations. Each step in the process is a building block towards advancing your client’s objectives and fostering meaningful settlement discussions.

 

Griffiths • Goyette are Leading ADR Providers Since 1993. Principal Anne M. Lawlor Goyette has streamlined and resolved thousands of civil disputes in California and nationwide as a full time Mediator, Court Appointed Neutral and Arbitrator.

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April 1, 2024
Advance Resolution: Your Roadmap to Successful Mediation

Civil litigation is often expensive, time-consuming and stressful. Mediation is a compelling alternative that empowers parties to control the outcome of their disputes. The key is preparation. Here are the fundamental steps for counsel to advance a productive and successful mediation. Know Your Case. Before entering mediation, it’s essential for counsel to have a solid understanding of the case facts and issues. Verify key information, analyze evidence, involve all necessary parties and understand the insurance landscape before the mediation session. By being thoroughly prepared, counsel can effectively advocate for the clients’ interests and contribute to fruitful negotiations. Ready Your Client.…

Civil litigation is often expensive, time-consuming and stressful. Mediation is a compelling alternative that empowers parties to control the outcome of their disputes. The key is preparation.

Here are the fundamental steps for counsel to advance a productive and successful mediation.

  1. Know Your Case. Before entering mediation, it’s essential for counsel to have a solid understanding of the case facts and issues. Verify key information, analyze evidence, involve all necessary parties and understand the insurance landscape before the mediation session. By being thoroughly prepared, counsel can effectively advocate for the clients’ interests and contribute to fruitful negotiations.
  2. Ready Your Client. Effective communication and preparation are important to ensuring that clients are ready for the mediation process. Counsel should connect with their clients early to identify goals, explore alternatives to negotiated agreements and explain the mediation process. Aligning client expectations and objectives allows smoother negotiations and increases the likelihood of a favorable outcome.
  3. Engage the Mediator. The mediator plays a crucial role in facilitating communication, addressing obstacles and guiding parties towards resolution. By collaborating with the mediator early, counsel can execute clear and purposeful action including straightforward goal setting, streamlined data gathering, simplified problem solving and strategic conferencing. This ultimately paves the way for successful negotiations.
  4. Develop an Action Plan. A well-defined settlement strategy is vital for maximizing success in mediation. Parties should consider timing, structure, and proactive approaches towards negotiation in advance. By outlining desired outcomes and negotiation strategies, parties can drive discussions towards a favorable resolution.
  5. Close the Deal. Consider potential settlement terms and identify possible roadblocks in advance of mediation. Make certain that participants are decision-makers with full settlement authority. Arrive at mediation prepared to close the deal. Whenever possible, document and sign any agreement reached at mediation; if a global resolution is not reached, explore options for further negotiations.

In conclusion, successful mediation requires careful preparation, effective communication and strategic engagement. Counsel who follow the listed guidelines bring significant value to settlement discussions and ultimately minimize risks, expand options and optimize the resolution of their client’s disputes. 

 

Griffiths • Goyette are Leading ADR Providers Since 1993. Principal Anne M. Lawlor Goyette has streamlined and resolved thousands of civil disputes in California and nationwide as a full time Mediator, Court Appointed Neutral and Arbitrator.

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February 22, 2023
Gonzalez v. Google LLC

Today the Supreme Court of the United States heard arguments in the case of Gonzalez v. Google LLC and the internet is nervous. The case revolves around YouTube’s algorithms and whether they should be held liable for their suggested video content. Typically, websites are protected under section 230 of the Communications Decency Act of 1996, though the limits are being tested with greater frequency. Gonzalez aims to hold YouTube’s parent company, Google, responsible for aiding and abetting ISIS in their 2015 Paris attack under the U.S. Anti-Terrorism Act. Various commentators believe that a ruling overturning the lower court’s decision in favor of…

Today the Supreme Court of the United States heard arguments in the case of Gonzalez v. Google LLC and the internet is nervous. The case revolves around YouTube’s algorithms and whether they should be held liable for their suggested video content.

Typically, websites are protected under section 230 of the Communications Decency Act of 1996, though the limits are being tested with greater frequency. Gonzalez aims to hold YouTube’s parent company, Google, responsible for aiding and abetting ISIS in their 2015 Paris attack under the U.S. Anti-Terrorism Act.

Various commentators believe that a ruling overturning the lower court’s decision in favor of Google could result in open season on the internet. The National Center for State Courts most recent Trends in State Courts Report discusses simulation efforts to proactively predict the case load such a ruling would have on courts, but liability suits could overwhelm courts and stifle internet economies.

As a neutral with 25 years in the practice, if these predictions are accurate, courts likely will turn to experienced neutrals even more for support in case management and settlement efforts. Regardless of the final decision in Gonzalez, opportunities for neutrals to assist in the resolution of complex disputes will continue to grow and evolve as we move toward a more digital world and way of life.

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February 15, 2023
Good neighbors: ADR and affordable housing

Neighborhood conflicts concerning housing, construction, and land use are some of the most contested areas of public life and law.  Disputes can clog city offices and state courts. Solutions through mediation and ADR can clear backlogs, create healthier communities, create jobs and save the state millions of dollars.   The American Bar Association hosted a webinar last week on affordable housing solutions and ADR, particularly in conjunction with community mediation centers. Community Mediation Centers came out of the 1964 Civil Rights Act, when the Community Relations Service was created within the Department of Justice. Originally called Neighborhood Justice Centers, these…

Neighborhood conflicts concerning housing, construction, and land use are some of the most contested areas of public life and law.  Disputes can clog city offices and state courts. Solutions through mediation and ADR can clear backlogs, create healthier communities, create jobs and save the state millions of dollars.

 

The American Bar Association hosted a webinar last week on affordable housing solutions and ADR, particularly in conjunction with community mediation centers. Community Mediation Centers came out of the 1964 Civil Rights Act, when the Community Relations Service was created within the Department of Justice. Originally called Neighborhood Justice Centers, these mediation centers allowed communities to address conflict effectively and strengthen the capacity of the neighborhoods. 

 

For affordable housing organizations, developers, and planners looking to build new units, whether workforce housing or supportive housing, ADR can assuage community fears and expedite the approval process.  By turning to these centers, or to law professionals with ADR experience, these groups can find solutions to public complaints and create community alliances.

 

The first step in any mediation is to listen. One of the reoccurring experiences the housing panelist related was the coded language used when neighbors voiced their complaints to the proposed units. Many communities hear ‘affordable’ and think section 8, when in fact it is often teachers, fire fighters, and other civil workers who will access the housing. Clearing up misconceptions by asking clarifying questions creates trust. As with any mediation, don’t shy away from or negate what is being said. Name and address misconceptions.

 

Another mediation hallmark is providing solutions-oriented approaches to move people from ‘that’s impossible’ to ‘let’s do this.’  Two real world examples from the ABA webinar looked at problems communities were already facing, and then illustrated how their proposed affordable housing developments could solve these problems. In the conservative and wealthy Hamptons, the small city increasingly struggled with traffic congestion. Commuters who could not afford to live in the area accounted for a large portion of that congestion. Yet, there weren’t even enough commuters to staff the local business, forcing some owners to shutter. It didn’t take much work to illustrate how the creation of workplace housing would alleviate both those problems. Now, the community applauds and welcomes the new housing.

 

The second example comes from the Midwest. One city was considerably resistance to new multifamily housing. The biggest complaint? Trash wasn’t getting picked up as it was, the influx of population would exasperate this. The planners took this problem to the city and helped create expanded trash collection services, addressing the neighborhood’s need before even breaking ground. 

 

After listening, clarifying misconceptions, and offering solutions to proposed hurdles, the last step in successful alternative dispute resolution is to make sure the appropriate decision makers are in the room.  Legally, residents don’t control the neighborhood or who can live there, but as constituents they can exert their control on local government and elected officials. The solution is to bring those officials in early. Really get to know the area. Councilpersons are great resources and community mediation centers are a neutral place for them to talk safely about their concerns before they meet with the public. This is an opportunity to educate the officials, gain an ally, and get access to other community leaders. Once a public meeting is set, or a suit is filed, people get dug in. Get to the decision makers before that to keep the momentum forward moving.

 

By offering collaborative approaches to housing problems before units are built, solutions to conflicts can be addressed more efficiently and neighbors can retain a sense of control and involvement in their communities. Effective and economical methods of dispute resolution happen through listening, education, and solutions-oriented service. ADR professionals are poised to offer these services, whether through their own private practice or through a community mediation center. 

 

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December 21, 2022
Special Masters: the court’s (not so) secret weapon

“For more than twenty years, responses to questions about my career often drew blank looks, followed by: “What do you do exactly?” Donald Trump changed that. Now, most people seem to understand that a special master is an independent arbiter appointed by the court to support the management and resolution of complex civil cases.” Read the full article here.  

“For more than twenty years, responses to questions about my career often drew blank looks, followed by: “What do you do exactly?” Donald Trump changed that. Now, most people seem to understand that a special master is an independent arbiter appointed by the court to support the management and resolution of complex civil cases.”

Read the full article here.

 

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November 29, 2022
Natural disasters compound construction defects

Torrential rains in Italy this last week triggered landslides on the island of Ischia, Italy. Densely populated and known for its thermal baths, the island also sits in an earthquake zone. Proper construction methods take these environmental factors into account. However, it appears that the race for construction to catch up with population growth may have resulted in corners being cut. Multiple structures were destroyed last weekend in the port city of Casamicciola Terme. Several people are still missing. The fallout from this most recent disaster will require people with different, and perhaps conflicting, goals to come together to create…

Torrential rains in Italy this last week triggered landslides on the island of Ischia, Italy. Densely populated and known for its thermal baths, the island also sits in an earthquake zone.

Proper construction methods take these environmental factors into account. However, it appears that the race for construction to catch up with population growth may have resulted in corners being cut. Multiple structures were destroyed last weekend in the port city of Casamicciola Terme. Several people are still missing.

The fallout from this most recent disaster will require people with different, and perhaps conflicting, goals to come together to create plans for relocating citizens, adopting new construction standards and executing those plans. Understanding the role of experts, builders, insurers, government, other groups and local customs will be integral to managing a successful solution.

Read more here.

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November 16, 2022
American Education Week 2022

November 13th – November 19th is American Education Week and certainly education is something to be celebrated. This year, that celebration includes recognizing how education in America has changed. Schooling of every level, from preschool to post graduate, has been affected by the lasting effects of the Covid 19 pandemic. It will be years before the sum total of these effects on professions that require highly educated talent to operate properly will be fully understood. Even before Covid, law schools saw decreasing numbers of first year students. For many perspective students, the debt load incurred in pursuing a law degree…

November 13th – November 19th is American Education Week and certainly education is something to be celebrated. This year, that celebration includes recognizing how education in America has changed. Schooling of every level, from preschool to post graduate, has been affected by the lasting effects of the Covid 19 pandemic. It will be years before the sum total of these effects on professions that require highly educated talent to operate properly will be fully understood.

Even before Covid, law schools saw decreasing numbers of first year students. For many perspective students, the debt load incurred in pursuing a law degree was enough to deter enrollment. However, the law school application process can be a determent in and of itself. Just this year the ABA proposed making the LSAT an optional assessment for admission, allowing schools more flexibility in their selection process.

The ABA Young Lawyers division has done well to create a national network of mentors, and recently even began a first generation initiative to support those brave students striving to be the first lawyers in their families. Also, the national conversation around the cost of higher education has prompted some colleges and universities to reexamine their tuition. These efforts will no doubt impact who gets to practice law. Remember, the true value of education is not a numerical one, rather it is a value that dictates the quality of America’s future professionals.

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November 9, 2022
The Advantages of Virtual ADR

High emotion cases, such as wrongful death, medical malpractice, or family disputes may be more challenging to negotiate remotely.  I have settled many cases the last two years over the Zoom video conferencing platform, including emotional cases involving highly personal issues, multiparty construction cases, and business disputes. A recent Daily Journal article looks at how virtual mediation has helped address the backlog of probate and trust cases, and how an April 2021 California Court ruling has impacted the mediation landscape. Read the article here.

High emotion cases, such as wrongful death, medical malpractice, or family disputes may be more challenging to negotiate remotely.  I have settled many cases the last two years over the Zoom video conferencing platform, including emotional cases involving highly personal issues, multiparty construction cases, and business disputes.

A recent Daily Journal article looks at how virtual mediation has helped address the backlog of probate and trust cases, and how an April 2021 California Court ruling has impacted the mediation landscape. Read the article here.

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October 1, 2021
Simplified Problem Solving

“Anne Goyette is unlike many mediators and arbitrators because she has spent much of her 23 years in the field working as a special master, either appointed by a judge or chosen by parties to take on management of complex litigation to assist the court.” On Friday, October 1 2021, Don DeBenedictis interviewed Anne Lawlor Goyette on handling special cases. View the full article here.

“Anne Goyette is unlike many mediators and arbitrators because she has spent much of her 23 years in the field working as a special master, either appointed by a judge or chosen by parties to take on management of complex litigation to assist the court.”

On Friday, October 1 2021, Don DeBenedictis interviewed Anne Lawlor Goyette on handling special cases. View the full article here.

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August 2, 2021
Resolutions: A Conversation About Mediation Strategies

Resolutions · Take 5: A Conversation About Mediation Strategies Resolution: A Podcast About Dispute Resolution and Prevention is a bi-monthly podcast hosted by rotating staff at the American Bar Association. In this episode, Resolution’s newest host, Caroline Stauffer, speaks with Anne Goyette, Arbitrator, Mediator, and principal of Griffiths Goyette about strategic approaches to mediation. This podcast was originally published on the American Bar Association Podcast Hub on Tuesday, July 13, 2021.

Resolutions · Take 5: A Conversation About Mediation Strategies

Resolution: A Podcast About Dispute Resolution and Prevention is a bi-monthly podcast hosted by rotating staff at the American Bar Association.

In this episode, Resolution’s newest host, Caroline Stauffer, speaks with Anne Goyette, Arbitrator, Mediator, and principal of Griffiths Goyette about strategic approaches to mediation.


This podcast was originally published on the American Bar Association Podcast Hub on Tuesday, July 13, 2021.

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July 1, 2021
Take Five

Litigation can be expensive, time consuming and stress inducing. Covid-19 restrictions are exacerbating these conditions. Mediation is an alternative that empowers litigants,  counsel and insurance professionals to minimize risks, expand options and optimize  outcomes. Rather than relying on the opinions and biases of judges and jurors, prepared  mediation participants gain the opportunity to control and shape the resolution of their  dispute.  Here are five key steps to a productive and successful mediation. Know Your Case  Counsel should develop a solid understanding of the dispute’s pertinent facts and  issues well in advance of mediation. A judicially appointed referee or Special Master …

Litigation can be expensive, time consuming and stress inducing. Covid-19 restrictions are exacerbating these conditions. Mediation is an alternative that empowers litigants,  counsel and insurance professionals to minimize risks, expand options and optimize  outcomes. Rather than relying on the opinions and biases of judges and jurors, prepared  mediation participants gain the opportunity to control and shape the resolution of their  dispute. 

Here are five key steps to a productive and successful mediation.

Know Your Case 

Counsel should develop a solid understanding of the dispute’s pertinent facts and  issues well in advance of mediation. A judicially appointed referee or Special Master  can assist the parties in streamlining the production of necessary information. 

Verify the client’s role in the dispute. An attorney’s credibility may be damaged if his  opponent produces evidence at mediation that counters his position on key  information. If there is a written contract, counsel should confirm that it accurately  reflects his client’s work. The subcontractor who placed drywall throughout a  condominium project has very different exposure than the drywaller who installed  leaking windows as a favor to the general contractor. Similarly, the surprise discovery of a client’s secret marriage during mediation may negatively impact negotiations for  support payments in a domestic partnership dispute.  

Analyze key evidence. As is always the case, counsel should be familiar with all  relevant key evidence. In a personal injury case, this includes reviewing the medical  records of the treating physicians to confirm that the client had no related prior injuries and his doctors’ diagnoses line up. Are there significant medical liens? Will an  Independent Medical Examination advance settlement discussions? In commercial  disputes, counsel should review contract documents and analyze the impact of  indemnity, attorneys’ fees, force majeure, insurance requirements and other relevant  clauses. After analyzing the evidence, counsel should include pertinent documents in  the mediation brief. 

Avoid the “empty chair” at mediation by involving necessary parties in the  negotiations. Otherwise, a participant may point to an absent party as the one who  should be paying the freight, or at least paying a significant share, to lessen his own  contribution. Along this line, counsel should evaluate the viability of the parties. Do  they have adequate resources to contribute towards a settlement, pursue a claim all the way to trial or pay a judgment?  

Understand the insurance picture. If a lawsuit involves covered claims, counsel should  request applicable insurance information and identify the defending carriers.  (CCP §2017.210) It is not unusual for a single carrier to defend multiple parties in a complex case, a scenario that may impact settlement dynamics. Once the relevant records are gathered, counsel can analyze potential coverage issues. Large disputes  frequently involve time on risk disagreements, exhaustion questions, self insured  retention, consent provisions and other issues that directly impact negotiations. To  prepare for such complications, the parties may consider retaining coverage counsel  when the stakes are high or insurance coverage is uncertain. Counsel may not resolve  the myriad of insurance issues before mediation. However, having identified the issues  and engaged the decisionmakers, the parties can factor this information into case value  determinations and settlement strategies.  

Prepare Your Client 

Counsel should meet with their clients before mediation to understand goals, define  options and explain the mediation process. 

What does your client want? While the aim of most mediations is to negotiate funds,  clients may have additional goals. Often, these goals are related to the negotiation  timeline. For instance, there may be advantages to timing the resolution around a  particular event. Perhaps the client is hoping to pursue a lucrative business opportunity but can only do so if the dispute is resolved by a certain date. In some cases, a ruling on  a pending motion or trial in a separate lawsuit can strengthen or diminish a client’s  position. Is there an ongoing personal or business relationship that the parties want to  preserve with a fast resolution? Other goals may include emotional recognition through  an oral or written apology, a published retraction or even a commemorative plaque.  Counsel should continue to discuss objectives with their clients as the case proceeds.  Mounting costs, other commitments and the stress of litigation may moderate even the  most aggressive or irate client’s goals.  

What are the best alternatives to a negotiated agreement? Settlement allows the parties  to minimize risks, generate creative solutions and maintain control over the outcome of  the dispute. To develop a road map for effective negotiations, parties should explore alternatives to a brokered deal. What happens if the case does not settle? Will the  participants name new parties, vigorously conduct discovery, file dispositive motions,  pursue a published court decision or try to engage other influencers in the dialogue? Rather than ending a dispute, will a verdict likely result in posttrial motions and  lengthy appeals? Will the victor be able to collect on a judgment or recoup any costs?  Also, the parties should consider their opponent’s goals and their options if the dispute  does not settle. Participants can gain a good understanding of settlement value by  defining and analyzing alternatives to a mediated resolution. 

Explain the mediation process. While most lawyers have participated in mediation, clients may be unfamiliar with the process. Counsel should discuss statutory and  contractual confidentiality protections applicable to the negotiations. In California, all  written and oral communications made for the purpose of mediation are confidential  and inadmissible in any judicial proceeding, including statements that may be relevant  to any potential malpractice claim. Except in representative actions, counsel must obtain  the client’s signed acknowledgement that “he or she has read and understands the  confidentiality restrictions.” Evid. Code §§1119(c), 1129. See also Cassel v. Superior  Court (2011) 51 Cal.4th 113. 

Traditionally, mediations begin with a joint session in which the mediator introduces  the participants and discusses the rules and any agreements concerning the mediation.  The parties may also give opening statements in the joint session; if so, counsel should  manage client expectations by explaining, in advance, that each side will present its best  case scenario, aggressively focusing on strengths and minimizing any weaknesses. Today, many parties opt out of giving opening statements to avoid the possibility of  igniting emotions, further alienating the parties and complicating settlement efforts;  others see them as a golden opportunity for counsel or the client to directly connect  with decisionmakers. 

After the opening session, the mediator usually moves the parties into separate rooms to privately explore settlement opportunities. The mediator may bring the parties  and/or the attorneys together again for further joint negotiations or to finalize any  settlement agreement. 

Consider in person and remote mediation options. In person meetings allow  participants to interact informally, read body language, look each other directly in the  eye, express empathy with a pat on the back and seal a settlement with a handshake. A  decisionmaker who invests the time, money and energy to travel to a distant mediation  often gains credibility and demonstrates that she is serious about trying to reach a deal. 

While virtual sessions are not perfect substitutes for in person sessions, there are  benefits to this technology. Virtual meetings significantly reduce travel costs and time  commitments and make it easier to schedule meetings. Participants can simultaneously  see each other’s reactions onscreen. As the speed and quality of videoconferences continue to improve, and people become more comfortable with the technology, virtual  sessions will continue to grow in popularity. In April 2020, Zoom reported 300 million  daily users. 

High emotion cases, such as wrongful death and medical malpractice cases, may be  especially challenging to negotiate remotely. Business and commercial cases may be  more suitable for remote resolution.

Engage the Mediator 

The Mediator’s initial call with all counsel is an opportunity for the parties to establish  straightforward objectives and advance a clear and cost-efficient resolution strategy. Counsel may agree to a streamlined production of information needed for meaningful  negotiations. The process may include an agreement to deposit all relevant information  at a single location, stipulate to the production of confidential documents, prioritize depositions directly relevant to negotiation points or exchange verified declarations  regarding privileged financial matters.  

Follow up, strategic one-on-one conferences with the Mediator allow the participants to  privately discuss their goals, address obstacles and explore resources in preparation for  a productive mediation. Counsel often raise concerns about unrealistic client  expectations, highlight the potential impact of a personal message or apology, flag  emotional triggers or identify insurance or funding problems. The Mediator works with counsel to implement an approach to address these issues, avoid emotional outbursts  and pave a path to productive talks at mediation.  

For example, in a recent construction defect case, the parties initially agreed to focus on  the production of key documents. In individual strategy sessions, they identified and  tested the impact of insurance coverage issues. Realizing that they faced likely  bankruptcy if the dispute progressed to trial, the defense arrived at mediation prepared  to explore creative resolutions. They ultimately agreed to form an LLC to buy back,  repair and then re-sell the damaged home. The homeowners, having already found a  home in the same neighborhood, accepted the proposal contingent on applying the  funds from the sale of their current home to the purchase of the new home. The case settled at the one-day mediation. Escrow simultaneously closed on the purchase and  sale of the two homes three months later, and the parties filed dismissals with prejudice the following day.

Simplify Complexities 

To streamline resolution of complex cases, confer with your experts regarding key  issues before mediation. The right experts will clarify claims, defenses and risks,  encourage creativity and expand resolution options in disputes involving technical,  scientific or other complex issues. Evidence prepared by expert consultants for  mediation, including photographs, videos, written witness statements and recorded  analyses of raw data, is confidential in California. 

Determine the role of experts in the mediation process. Before mediation, parties may  agree to allow their experts to share opinions. Fairly candid expert exchanges frequently  occur under the mediation privilege and before any formal expert disclosures and  depositions. In construction cases, experts often explore different repair options to  bridge the gap in settlement positions. In some cases, parties jointly retain a neutral  expert. An objective, reliable appraisal may be the catalyst to close a real property  dispute, a respected professor’s geotechnical review may break the logjam as to the  source of extensive cracks throughout a shopping center or a jointly retained financial  expert may untangle complicated financial arrangements. Alternatively, parties may  opt to share their individual expert reports with the Mediator. Expert summaries of  treating physicians’ reports in medical product cases are tremendously helpful in  preparing for meaningful negotiations. 

At mediation, expert presentations highlight the strength and weakness of the parties’  positions, generate creative options and provide a preview of the experts’ effectiveness  at trial. Decisionmakers who previously dismissed legal theories, may sit up and pay  attention to an objective, scientific explanation of events. Areas of agreement may be  clarified and areas of disagreement narrowed. The parties may realize that the jury  likely will not grasp important technical nuances and, instead, may decide a case based  on personal bias or incorrect assumptions rather than sound science. Any of these  scenarios can generate productive settlement discussions.

Develop a Strategy 

Parties should develop a settlement strategy as far in advance of a mediation as  possible.  

Determine the best timing for service of the initial settlement demand or offer. In  cases involving insured business claims, a demand should be served four to six weeks  in advance of the mediation to allow counsel sufficient time to obtain appropriate  authority from their client or insurance carrier. On the other hand, in an emotionally  charged personal injury or wrongful death case, counsel may decide to withhold a  demand or offer until the parties have an opportunity to share their stories with the  Mediator. 

Consider the structure of a potential agreement and how it will impact your  settlement strategy. In a multiparty case, plaintiff may be set on a global agreement or  may consider settling with a particular individual or around a “problem” player. Recalcitrant parties may be more interested in brokering a settlement if they see other  defense parties exiting the case; in complex litigation, no one wants to be the cheese that  stands alone at trial.  

Confirm that decisionmakers will attend with settlement authority. Ideally, all representatives and insurance professionals at the mediation have sufficient authority  to approve a deal. Before mediation, parties should consider and address additional  issues that may impact their ability to finalize an agreement. For example, if any key  player is bankrupt, suspended or a juvenile, parties should take the necessary legal  steps to address the situation and secure authority to close a deal. Perhaps a third  party’s consent is needed to finalize an agreement. In a recent case, a neighbor had to  give the parties access to her property for them to perform building repairs that were  the key to resolution of the dispute.  

Be proactive. Rather than merely reacting to an opponents’ offers or demands,  participants should privately define the outcome they hope to achieve and outline a  basic negotiation strategy. A party might consider starting with a settlement demand or  offer backed up by an explanation of damages and then make moderate, measured  moves until her opponent reaches a certain threshold. Alternatively, she might begin with aggressive moves and then signal her end point with smaller and smaller steps. A  party may plan to propose a settlement bracket if the parties are not within a particular  range after three or four exchanges. Some negotiators like to focus on the midpoint of  offers and demands, messaging their final target number while formally  communicating a number that preserves negotiating room. 

Consider potential settlement terms in advance of mediation. Counsel should analyze the possible legal and practical impact of clauses they would like included in the final  agreement, such as mutual release, confidentiality, non-disparagement, payment  security or arbitration provisions. In lieu of a strictly cash settlement, a draft may  identify other types of compensation, such as complimentary services, an apology,  write off of money owed or a resignation letter. If a settlement is reached at mediation, the party who attends with a proposed agreement in hand can provide the structure for  closing discussions, finalize the document and efficiently close the deal at mediation. 

In sum, be prepared. Take five key steps in advance of mediation for productive and  successful negotiations. Know your case. Prepare your client. Engage the Mediator.  Simplify complexities. Develop a settlement strategy. Counsel who follow these  guidelines bring significant value to mediation and ultimately minimize risks, expand  options and optimize the resolution of their clients’ civil disputes.


This article was originally published in the Los Angeles Daily Journal on Friday, May 21, 2021.

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July 15, 2020
Virtual ADR Relief Zooming In

Covid-19 has closed businesses, moved school instruction online, delayed surgeries and created suffering and health fears throughout the United States. To say the least, the last two months have been very challenging.

With civil trials suspended, Covid-19 also has significantly disrupted civil litigation. It is unclear how civil jury trials will be handled once the stay in place orders are lifted. How will courts address social distancing concerns to safeguard court personnel, attorneys and litigants? Will courts assemble jurors before widespread testing or vaccines are available? Criminal matters, unlawful detainers and preference cases likely will be prioritized. Meanwhile, the backlog of civil cases is growing. Covid-19 related litigation itself is expected to add significantly to the courts’ already heavy caseload. Further continuances of existing court dates are anticipated. More delays and increased litigation costs will follow.

Covid-19 has closed businesses, moved school instruction online, delayed surgeries and created suffering and health fears throughout the United States. To say the least, the last two months have been very challenging.

With civil trials suspended, Covid-19 also has significantly disrupted civil litigation. It is unclear how civil jury trials will be handled once the stay in place orders are lifted. How will courts address social distancing concerns to safeguard court personnel, attorneys and litigants? Will courts assemble jurors before widespread testing or vaccines are available? Criminal matters, unlawful detainers and preference cases likely will be prioritized. Meanwhile, the backlog of civil cases is growing. Covid-19 related litigation itself is expected to add significantly to the courts’ already heavy caseload. Further continuances of existing court dates are anticipated. More delays and increased litigation costs will follow.

Remote alternative dispute resolution services can help reduce the backlog and ease the burden on courts and litigants.

For example, special masters streamline discovery and overall case management and address problems before they evolve into unnecessarily expensive and time-consuming disputes. Special masters allow parties to preserve their right to trial, while minimizing litigation risks and delays and maximizing settlement opportunities. Just last year the ABA encouraged the accelerated use of special masters to “aid in the ‘just, speedy and inexpensive’ resolution of cases.” ABA Resolution 100. Special masters can advance these goals largely through focused and strategic teleconferences.

Many mediators, referees, attorneys, carrier representatives and litigants started using virtual mediation for the first time during the shelter in place. The popular Zoom video platform is easy to use and a simple way to navigate these sessions. All participants need is a strong and secure Wi-Fi connection, a computer with a camera, the Zoom app and some basic instruction to gain confidence in the process. The mediator guides participants through virtual rooms and advances settlements through confidential negotiations. A brief overview of the tools used by participants in a Zoom mediation follows; the platform also offers short, helpful online tutorials.

Facetime is another option for mediating simple, two party disputes.

State and federal courts are using the Zoom platform for mediations and judicial hearings. The process works equally well for arbitration hearings. Further, court reporting services are offering free technical training to prepare participants, particularly with the introduction and marking of exhibits.

Clearly, virtual sessions are not the perfect substitute for in person negotiations or hearings. In person meetings allow participants to interact informally, read body language, look each other directly in the eye, express empathy with a pat on the back and seal a settlement with a handshake. High emotion cases, such as wrongful death and medical malpractice cases, may be especially challenging to negotiate remotely. Business, commercial and construction cases may be more suitable for remote resolution.

On the other hand, virtual meetings significantly reduce travel costs and time commitments and make it easier to schedule meetings. Participants can simultaneously see each other’s reactions onscreen. As technological advances continue to improve the speed and quality of videoconferences and people become more comfortable with the technology, virtual sessions will continue to grow in popularity. Zoom recently reported 300 million daily users. All businesses are learning to thrive under these new and unique conditions, and this is a great time to master this phenomenal tool.

An Overview of a Zoom Mediation for Participants

  • Participate from somewhere comfortable, free from distractions and with a strong, stable and secure internet connection. Do not use public access Wi-Fi, such as those available in public spaces and businesses. Make sure to have light on your face; your primary light source should be behind your camera. Use a headset if you have one.
  • From your computer, tap the Zoom link in the email notice. You will be placed in a Waiting Room. The names of waiting participants are visible, but no one in the waiting room can be seen or heard by anyone else in the conference. The Waiting Room is a security feature that prevents uninvited guests from entering the mediation.
  • From the Waiting Room, the mediator will move participants into a virtual Main Conference Room. Everyone in the Main Room can see and hear everyone else in the room. Joint sessions are conducted in the Main Conference Room.
  • The mediator will assign participants to Breakout Rooms. Here, you can only hear and see other participants in your same room. The mediator announces her arrival into a Breakout Room by broadcasting a message to all rooms (watch for a blue banner at the top of the screen for mediator messages) or by sending a private cell phone text. The mediator can enter the Breakout Room and move participants from one room to another. Also, you may summon the mediator to your room by pushing the Ask For Help button at the bottom of your screen or simply sending a text to the mediator’s mobile phone.
  • A screen share button at the bottom of your screen allows you to share documents on your computer screen only with others in your room. You also may use a white board and have chats with others in your room.
  • You can mute your audio or stop your video at any time through buttons on the tool bar at the bottom of the screen.
  • When the mediator broadcasts that the parties will be returned to the Main Conference for a joint session, a one to two minute count down will appear on all screens.
  • Participants can use screen share to edit and finalize a Settlement Agreement. All parties may sign the agreement via DocuSign or Adobe Sign or by personally signing and then scanning/ photographing and emailing the executed document to the group.
  • Zoom has responded to recent security concerns primarily with upgrades in the host controls. For more information on Zoom new and old security systems, see https://zoom.us/docs/doc/Exec-Letter.pdf.
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July 15, 2020
Special Masters streamline the dispute resolution process, minimizing the costs, delays and risks of complex cases such as construction defects

The fire started just above the first floor ceiling. Workers renovating the seven-story historic hotel fled the smoke-filled stairway, stumbling and falling on the way. Aerosol paint cans exploded from the heat, and the fire grew to three alarms. Firefighters blasted the 100-year-old building with water and successfully extinguished the flames. Unfortunately, the hotel suffered extensive damage from the fire, smoke and suppression efforts. Rain later doused the interiors through the open roof and windows. Mold grew. Lead paint flaked and peeled off the walls.

The hotel owners performed millions in repairs. They resolved an insurance claim with their carrier and then sued the renovation contractor for remaining fire and breach of contract damages. The general contractor in turn sued the subcontractors suspected of starting the fire and their insurance carriers. Liability was hotly contested. The general placed a lien against the building, served stop notices and sued the hotel group for unpaid contract balances; the subcontractors also sued for sums due. Five actions for personal injuries and subrogation followed. Two years after the initial filing, significant investigation and litigation costs had been incurred. Counsel disagreed on how to address “threshold” legal and factual issues. The parties anticipated taking roughly 70 percipient depositions and filing motions to bifurcate and/or motions for summary adjudication/judgment. The Superior Court consolidated the eight cases, set, and then vacated, a trial date. The Superior Court subsequently appointed a Special Master.

The fire started just above the first floor ceiling. Workers renovating the seven-story historic hotel fled the smoke-filled stairway, stumbling and falling on the way. Aerosol paint cans exploded from the heat, and the fire grew to three alarms. Firefighters blasted the 100-year-old building with water and successfully extinguished the flames. Unfortunately, the hotel suffered extensive damage from the fire, smoke and suppression efforts. Rain later doused the interiors through the open roof and windows. Mold grew. Lead paint flaked and peeled off the walls.

The hotel owners performed millions in repairs. They resolved an insurance claim with their carrier and then sued the renovation contractor for remaining fire and breach of contract damages. The general contractor in turn sued the subcontractors suspected of starting the fire and their insurance carriers. Liability was hotly contested. The general placed a lien against the building, served stop notices and sued the hotel group for unpaid contract balances; the subcontractors also sued for sums due. Five actions for personal injuries and subrogation followed. Two years after the initial filing, significant investigation and litigation costs had been incurred. Counsel disagreed on how to address “threshold” legal and factual issues. The parties anticipated taking roughly 70 percipient depositions and filing motions to bifurcate and/or motions for summary adjudication/judgment. The Superior Court consolidated the eight cases, set, and then vacated, a trial date.

The Superior Court subsequently appointed a Special Master. Shortly thereafter, the parties deposited more than 250,000 pages of documents, responded to initial insurance and scope of work interrogatories and deposed twelve key percipient witnesses. Within seven months, and before the trial-setting conference, the Special Master focused the parties on the key issues and successfully brokered a global settlement of the consolidated litigation and a related federal insurance coverage action.

Why a Special Master?

Complex cases involve multiple parties, difficult and time-consuming issues, large volumes of discovery, coordination with other pending actions or extensive post-judgment supervision. They require “exceptional judicial management to avoid placing unnecessary burdens on the court or litigants … .” (Cal. Rules of Court, rule 3.400(a)(b).) Special Masters support the court with the efficient and effective management and resolution of these cases. Special Masters streamline discovery and litigation, reduce delays often associated with complex cases, negotiate settlements and ultimately save the parties and court significant time and expense. The parties may stipulate to a Special Master or the court may appoint the Special Master on its own motion. (Code Civ. Proc., §§ 187, 638, 639.)

Multiparty construction defect cases and Judicial Council Coordination Proceedings provide additional examples of the effective use of Special Masters to successfully resolve complex cases.

Construction defect cases

Construction defect cases typically involve numerous parties, attorneys, insurance companies and experts. Each player has its own goals. The property owner wants maximum funds to repair defects and cover losses. The builder disputes plaintiff ’s repair scope and cost estimates, and seeks to pass plaintiff ’s claims, and often the builder’s legal fees, onto subcontractors. The subcontractors concentrate on minimizing damages and shifting responsibility. The design professionals distinguish between construction errors and design issues. Attorneys challenge pleadings, decipher contracts, pursue claims and assert defenses. Insurers highlight policy language to define covered losses and involve other carriers to share the risk. Experts bring technical insight to all aspects of the discussions. Discovery and litigation costs soar.

In the 1980s, California experienced a population growth that more than doubled the national rate. The resulting high demand for housing ignited the construction industry and eventually caused a dramatic increase in construction defect litigation. With heavy caseloads, the Superior Courts simply could not invest sufficient time to conduct settlement negotiations to resolve these multiparty complex cases. The courts became backlogged. After studying the federal courts’ successful use of Special Masters, the San Francisco and San Mateo Superior Courts worked with local lawyers to create Alternative Dispute Resolution programs to address complex construction defect cases. They drafted a pre-trial order that included the appointment of Special Master to manage discovery under the Court’s supervision. John Griffiths was the first Special Master in California to successfully implement the order. He pioneered a process that streamlined the production of necessary information, narrowed the issues and engaged the parties in meaningful settlement discussions in multiparty construction cases. The process significantly shortened trial preparations at significant cost and time savings to the participants.

The legislature ultimately deemed constructive defect cases involving many parties or structures as provisionally complex. (Cal. Rules of Court, rule 3.400(c)(2).)

The process for resolving complex construction defect cases has evolved over the years. The use of Special Masters continues to be an effective and efficient means of organizing, managing and resolving complex construction defect cases.

As an example, in a recent case a large public university alleged more than $50 million in construction and design defects and economic loss at seven apartment buildings on the university campus. Three dozen defense parties included the builder, subcontractors, sub-subcontractors, product manufacturers and design professionals. The case within the case involved battles between the primary carriers, the excess carriers and the additional insurers. The builder’s prime insurer filed a complaint in intervention and a federal coverage action.

With multiple attorneys and experts representing each party, joint and defense only expert meetings involved well over a hundred participants. It was standing room only for Case Management Conferences. The judge cautioned that the courthouse was physically too small to host the trial. However, offsite trial locations raised security issues and complications for the judge who had other cases that had to be conducted at the court during any construction trial. In short, the case was a logistical nightmare.

The Special Master worked with the Superior Court and all parties to streamline case management, resolve discovery disputes and address disagreements that arose during ongoing dormitory repairs and student move-outs. All parties’ input was solicited for pre-trial orders. Focused and structured communications provided real-time updates. Without service of formal individual discovery requests, the parties successfully produced voluminous project documents, shared document expenses, conducted site inspections and destructive testing, arranged biweekly site visits, exchanged confidential expert reports, generated a discoverable statement of claims, attended substantive expert meetings, disclosed and produced percipient and expert witnesses, and coordinated approximately 200 days of deposition testimony. The Special Master also partnered with the mediator to negotiate scores of settlements, winnowing the number of parties and issues until the case globally settled before trial.

Judicial council coordination proceedings and multi-district litigation

The California Judicial Council Coordination Proceeding (JCCP) Courts are recognized for their ability to manage national litigations in cooperation with other coordinated proceedings. Federal Multi-district Litigations (MDLs), which are the federal equivalent to the JCCP, often overlap with coordinated proceedings in various state courts, including California. There are natural tensions between separate and independent jurisdictions, and Special Masters have successfully served to ease those tensions. More recent MDL/JCCP cases have served as cooperation models on issues that have been historically difficult to resolve, such as the conduct of liability discovery, document production, the sharing of work product, the use of a centralized case specific database, the coordination between counsel across many jurisdictions, trial setting, and consensual resolution.

In larger multi-venue complex cases, that perhaps include both state and federal jurisdictions outside of California, the use of Special Masters to foster communication between the parties and the JCCP court is now generally accepted. The Special Master assignments vary across litigations but have included all of the issues identified above. Currently, the federal courts are using Special Masters to oversee issues such as discovery, coordination with state courts, the selection of bellwethers, global settlement negotiations, etc.

In the early 2000s, in California Special Masters were granted JCCP assignments for aggregate settlement allocations. (Code Civ. Proc., § 638.) Because of the growing recognition of the success of JCCPs to resolve national cases on the merits, and the need for Special Masters to assist in that resolution, the role of Special Masters has increased.

In one recent JCCP, plaintiffs sought compensation for personal injuries and damages stemming from a prescription drug that was associated with a serious medical condition. The proceedings involved well over 5,000 plaintiffs and 18 different manufacturing defendants, with cases located in 16 different state and federal venues across the country and three coordinating jurisdictions. The role of the court-appointed Special Masters, in cooperation with coordinating courts and the parties, led to the successful resolution of this complex case. The Special Master created protocols and set a compensatory structure, along with case-specific criteria that was consensually adopted by the parties and the coordinating courts. These efforts resulted in both closure for the manufacturing defendants and participation for over 99 percent of the plaintiffs.

Special Masters working with the JCCP court are an integral part in resolving complex MDLs. There are certain limitations on a JCCP court and its ability to assign specific cases to a specific private mediator. However, in coordination with the federal MDL, Special Masters have had an increased role in the California system because of the complex state federal issues that are addressed in MDLs.

The Special Master created protocols and set a compensatory structure, along with case-specific criteria that was consensually adopted by the parties and the coordinating courts. These efforts resulted in both closure for the manufacturing defendants and participation for over 99 percent of the plaintiffs. Special Masters working with the JCCP court are an integral part in resolving complex MDLs. There are certain limitations on a JCCP court and its ability to assign specific cases to a specific private mediator. However, in coordination with the federal MDL, Special Masters have had an increased role in the California system because of the complex state federal issues that are addressed in MDLs.

A clear and purposeful approach

Successful case management of complex litigation by Special Masters requires a clear and purposeful approach to effectively and efficiently streamline the entire dispute resolution.

As a first step, the Special Master convenes all counsel and leverages their significant talent and experience to establish common objectives. The group uses straightforward case goals to generate a clear and cost-efficient resolution strategy. The parties participate in setting realistic deadlines to bring the case at issue, conduct discovery, explore potential motions and recommend a trial date. At the same time, the Special Master identifies opportunities for meaningful settlement discussions and calendars productive mediations and settlement conferences.

The Special Master streamlines data-gathering to allow analyses of necessary information without voluminous written discovery demands. Generally, a central depository or database is established where the parties deposit all relevant documents, insurance information and factual information regarding the parties’ roles in the dispute. The parties may agree to prepare factual declarations or limited interrogatories regarding claims or defenses. This minimizes expense and delay and prioritizes information needed for meaningful negotiations.

The Special Master encourages expert dialogue to simplify complex and technical issues, clarify defenses and risks, explore creative solutions and expand settlement options. Fairly candid expert exchanges frequently occur under the mediation privilege and before any formal expert disclosures and depositions.

With the parties’ consent, the Special Master enhances individual settlement strategies through one-on-one calls with decision makers to discuss goals, address obstacles and explore available resources in advance of mediation. Will plaintiff only consider a global settlement? Will lead parties allow peripheral party settlements? Who will or must attend the settlement discussions? Are there insurance coverage issues or other obstacles that may impede the negotiations? The Special Master advances the framework for meaningful negotiations, with settlements ultimately brokered by the Special Master and/or a mediator.

Importantly, throughout the resolution process, the Special Master conducts focused, ongoing regular group teleconferences to continuously provide real-time updates on outstanding issues and opportunities and promote effective communication and timely execution of action plans. Detailed summaries follow each conference. Counsel preview all status reports and proposed orders before their submission to the court.

In short, a Special Master supports the court’s efficient and effective management and resolution of all types of complex cases. Through a clear and purposeful approach to the entire dispute resolution process, she streamlines discovery and litigation, minimizes delays and creates meaningful opportunities for productive settlement negotiations. The use of Special Masters optimizes resolution outcomes, while minimizing the significant risks, delays and costs of complex litigation.

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July 1, 2016
Building Settlements in Construction-Defect Cases

Passing the buck is the usual defense strategy, and a Special Master may be needed to steer these cases towards settlement. Construction-defect cases typically involve large numbers of parties, attorneys, insurance companies and experts. Each player has its own goals. The property owner wants maximum funds to repair defects and cover losses. The builder disputes both plaintiff’s repair scope and associated costs and seeks to pass plaintiff’s claims onto subcontractors. The subcontractors concentrate on minimizing alleged damages and shifting responsibility. The design professionals distinguish between construction errors and design issues. Attorneys challenge pleadings, decipher contracts, pursue claims and assert defenses.…

Passing the buck is the usual defense strategy, and a Special Master may be needed to steer these cases towards settlement.

Construction-defect cases typically involve large numbers of parties, attorneys, insurance companies and experts. Each player has its own goals. The property owner wants maximum funds to repair defects and cover losses. The builder disputes both plaintiff’s repair scope and associated costs and seeks to pass plaintiff’s claims onto subcontractors. The subcontractors concentrate on minimizing alleged damages and shifting responsibility. The design professionals distinguish between construction errors and design issues. Attorneys challenge pleadings, decipher contracts, pursue claims and assert defenses. Insurers highlight policy language to define covered losses and involve other carriers to share the risk. Experts bring technical insight to all aspects of the discussion.

Special Master/Mediator

A special Master/Mediator can steer these players towards resolution by designing and implementing strategies that allow for meaningful settlement discussions in advance of mediation.

First, discuss with the participants the necessary parties and their roles at the project. If a contract exists, does it accurately reflect the client’s work? Did the client perform additional work? If the client is uncertain, will a site inspection or meeting with other defense parties refresh his memory? Also, determine whether the contract includes any attorney fee, duty to defend, indemnity or limitation of liability provision.

Second, assist the parties in sorting through any coverage issues. If there is an insurance issue that may impede settlement discussions, who are the decision makers and what information do they need to address the issue? Is additional carrier participation needed? Have the carriers reached a time on risk agreement? Are there additional insured issues? Many times, insurance-related issues can be resolved through a conference call between the neutral and carrier representatives; at a minimum, these calls identify decision makers and facilitate carrier analyses before mediation.

Third, work with the parties’ experts to define potential problems, develop repair proposals and explore creative solutions. Expert information plays a significant role in preparing a complex case and defense. How will the parties use this information in settlement discussions? Will experts explain areas of agreement and disagreement? Will they share possible solutions?

Finally, encourage the participants to develop a settlement strategy. Will plaintiff only consider a global settlement? Will the lead parties allow peripheral party settlements? Can players with additional insured endorsements settle early? Will the parties consider settling around a “problem” player? Who will attend the settlement conference with authority to finalize any settlement agreement? When will lead parties serve settlement demands? In addition to a settlement plan, the participants privately should define the outcome that they hope to achieve and plan how they will move from offer to offer or demand to demand before the mediation.

Moving players towards settlement in a construction-defect case is not easy. The process involves multiple players with variable and changing goals. Factual disputes, conflicting legal theories, late claims, missing parties and recalcitrant carriers create additional challenges. Nonetheless, a special Master/Mediator can steer these players towards resolution by implementing strategies that prepare parties for meaningful settlement negotiations.


This article was originally published in Plaintiff Magazine in July 2016.

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January 22, 2016
Complex neighbors: Santa Cruz & Santa Clara

Santa Clara County is the most populated county in the San Francisco Bay Area with close to 1.9 million people. The county is home to cutting edge Silicon Valley and boasts a median household income of $93,854. Santa Clara County Superior Court had 24,576 civil filings in 2013-2014 with roughly 250 complex civil cases. The court’s 2015-2016 fiscal year budget is just over $103 million. In comparison, Santa Cruz County has an estimated population of 272,000. The county is known for beautiful beaches and agriculture and has a median household income of $66,923. In 2013-14, Santa Cruz had 3,562 civil…

Santa Clara County is the most populated county in the San Francisco Bay Area with close to 1.9 million people. The county is home to cutting edge Silicon Valley and boasts a median household income of $93,854. Santa Clara County Superior Court had 24,576 civil filings in 2013-2014 with roughly 250 complex civil cases. The court’s 2015-2016 fiscal year budget is just over $103 million.

In comparison, Santa Cruz County has an estimated population of 272,000. The county is known for beautiful beaches and agriculture and has a median household income of $66,923. In 2013-14, Santa Cruz had 3,562 civil filings, including three dozen complex civil cases. The court has budgeted $15.2 million for the upcoming fiscal year (2016). How do these neighboring counties handle complex cases?

Case Management

Complex cases filed in Santa Clara are assigned to Complex Civil Litigation Department Presiding Judge Peter Kirwan for all purposes. In Santa Cruz, most complex civil cases are assigned to Department 4 or 5 solely for pre-trial management, but a complex case also may be assigned to another available department at master calendar. Both counties often appoint special masters to assist with management and settlement of complex disputes.

In each jurisdiction, a case management conference generally is scheduled within six months of filing. Standard CMC forms are discouraged, and counsel are instructed to file substantive joint CMC statements. As Judge Kirwan explains, “The theory is to get the parties to talk, define important issues early and not be as polarized.” Counsel may appear at CMCs by telephone, but personal appearance is recommended if the parties plan to discuss significant issues.

E-Filing

Santa Clara County Superior Court mandated e-filing and e-service for complex civil cases through a stand-alone website (www.scefiling.org) in September 2006. Users may view all pleadings, including orders and minutes, at no charge. Litigants also may log in with a username and passcode to view restricted documents.

Last month, Santa Clara began transitioning to Odyssey online case management for civil and family law cases; criminal matters will follow in Spring 2016. These cases eventually will accept e-filing through Odyssey. Internally, the complex department will use Odyssey for data entry and case management, but attorneys will continue to use the existing complex department website.

In October 2015, Santa Cruz Superior began scanning documents and making them readily available online to all court personnel through Odyssey. Attorneys may apply for online access to documents in their cases; otherwise, users can just view the date and title of filed documents. E-filing in all civil cases is slated for March 2016.

Santa Cruz Superior Court Judge Rebecca Connolly notes that online access “allows the judge to save relevant files for easy access without being hampered by voluminous paper files and can facilitate the judge’s understanding of the legal issues being presented.” The judge suggests that counsel offer to provide judges or court staff with free access to any online service utilized by the parties in jurisdictions without electronic filing.

Mandatory Settlement Conferences

Mandatory settlement conferences in the Santa Clara courthouse usually occur one to two weeks before Trial. Judge Kirwan meets with any special master prior the MSC to assist negotiations. MSCs are not conducted on the first day of trial.

Santa Cruz generally sets an MSC four weeks prior to trial, but will work with counsel to set other dates, including the first day of trial. Settlement conferences in complex cases utilizing a special master preferably are conducted off site, as large multi party conferences tend to tax court facilities.

Representatives with full settlement authority musta attend MSCs. As Judge Kirwan succinctly explains “Full settlement authority means no one needs to make a phone call.”

Trial

Judge Kirwan sets complex civil trials approximately one year in advance. Trial dates are firm. With the consent of all counsel and good cause shown, parties may submit a written request for a continuance to a pre-approved trial date provided by Complex Case Administrator Rowena Walker.

The Santa Cruz presiding judge assigns complex trials to any available judge in the civil or criminal departments. Complex cases currently are being scheduled for trial about eight months out. While trial dates are firm, the court generally grants one continuance upon a finding of good cause and the consent of counsel.

In both courts, parties are strongly encouraged to streamline the trial process by preparing joint witness lists, exhibit lists, jury questionnaires and motions in limine. A tabbed binder of joint trial exhibits with proposed exhibit numbers and a computer disk of important documents should be lodged for the judge’s use. Hard copy binders and documents are due prior to trial calendar call.

In the Santa Clara complex courtroom, two 70″ television screens display evidence to the jury and gallery; smaller screens are directed to the judge, clerk and witness. A projector is available upon request. To date, requests to give jurors individual tablets have been denied out of concern that the tablets will be disruptive. In Santa Cruz, counsel use a projector and video screen mounted directly across from the jury box to display evidence.

In both jurisdictions, connections for laptops and media players allow counsel to display evidence electronically with their own computers. The courts provide a digital document camera, and witnesses can access a touch screen to illustrate and modify documents that in turn may be printed and entered as exhibits. Attorneys in Santa Clara also may connect the court reporter’s computer to receive Live Note on their laptops or tablets.

Counsel should contact the technology department at each court before trial to discuss any technology concerns and arrive early to arrange their equipment.

Judge Kirwan recommends that counsel set up Wi-Fi hotspots to maintain a consistent Internet connection during trial. In Santa Cruz, counsel also may obtain wireless Internet access for a small fee through the local bar association.

Both courts advise counsel to asses the physical limitations of the courtroom when analyzing the costs and risks of trial. Judge Kirwan has brought in extra tables and handled large capacity trials, but anticipates that ever larger, multiple party cases inevitably will be conducted off site. Judge Connolly discourages relocating trials due to substantial security and administrative issues and the impact on the judge’s work on other files. Both agree that offsite trials will significantly increase costs.

Conclusion

Santa Clara County is almost seven times as large as Santa Cruz County in terms of general population, civil case filings and court budgets. While there are differences as to how each jurisdiction handles complex civil cases, there are also many similarities. For example, Santa Clara has a single department devoted to handling complex civil cases from filing through trial; the department adopted e-filing and e-service through its website solely for complex civil cases more than nine years ago. In contrast, most complex cases in Santa Cruz are assigned to one department for pre-trial management and another for trial. Following a recent system wide upgrade, filings now can be accessed online and e-filing is just months away. Both jurisdictions assign firm trial dates, urge the parties to cooperate with joint status reports and trial submissions and provide technical support at trial.


This article was originally published in the Los Angeles Daily Journal on Friday, January 22, 2016.

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January 1, 2013
Effective Settlement Strategies for Construction Defect Cases

No one starts a war, or rather, no one in his senses ought to do so, without first being clear in his mind what he intends to achieve by that war and how he intends to conduct it. The enemy of a good plan is the dream of a perfect plan. – Karl von Clausewitz (1780-1831) Construction defect cases typically involve large numbers of parties, attorneys, insurance companies and experts. Each player has its own goals. The property owner wants maximum funds to repair defects and cover losses. The builder disputes both plaintiff’s repair scope and associated costs and seeks…

No one starts a war, or rather,
no one in his senses ought to do so,
without first being clear in his mind
what he intends to achieve by
that war and how he intends to conduct it.
The enemy of a good plan is the dream of a perfect plan.

– Karl von Clausewitz (1780-1831)

Construction defect cases typically involve large numbers of parties, attorneys, insurance companies and experts. Each player has its own goals. The property owner wants maximum funds to repair defects and cover losses. The builder disputes both plaintiff’s repair scope and associated costs and seeks to pass plaintiff’s claims onto subcontractors.

The subcontractors concentrate on minimizing alleged damages and shifting responsibility. The design professionals distinguish between construction errors and design issues. Attorneys challenge pleadings, decipher contracts, pursue claims, and assert defenses. Insurers highlight policy language to define covered losses and involve other carriers to share the risk. Experts bring technical insight to all aspects of the discussion. Discovery and litigation costs soar. It is no wonder the resolution of construction defect cases has been compared to herding cars.

Planning for the fray

The independent players can be steered towards efficient case resolution. First, it is important to bring the participants together at the outset of the case to articulate their goals and tailor a case schedule accordingly. Second, the parties should use the productions of insurance, scope of work and project documents to identify and address potential impediments to settlement. Third, the parties should develop an overall settlement plan and negotiation strategy before the settlement conference. While those preparations may not remove all obstacles, they will guide the parties toward meaningful settlement negotiations and, ultimately, efficient case resolution.

From the inception of the case, the parties should discuss with the mediator the overall case schedule and duration, including triggers for conduction a settlement conference, lifting the discovery stay and requesting a trial date. Importantly, the parties should agree on the total number of anticipated settlement conferences. The parties also should use their best efforts to articulate all claims and involve all potentially responsible parties and their carriers early in the litigation; failure to do so most likely will impact the parties’ ability to achieve their case goals.

As an example, the parties may craft a case management schedule that anticipates a trial date within two years of case filing. The mediator may calendar teleconferences, site inspections, expert meetings, homeowner board meetings and/or defense meetings. Once these tasks are completed, the parties may agree to participate in the first of a target maximum of three settlement conferences with trial counsel, insurance representatives and principals with settlement authority personally in attendance.

The case management plan ideally should be implemented in a series of customized pre-trial orders. With the exception of scheduling a trial date, each order should establish deadlines over roughly a 90-day period and notice teleconferences between the neutral and all counsel after the completion of specific tasks. This approach allows the parties and the neutral promptly to address any missed deadlines and minimize any resultant delay. It also avoids the perception of “fake deadlines,” particularly by decision makers who grow weary of last minute scheduling changes that directly impact their calendars.

Identify settlement obstacles early

The first pre-trial order in a construction defect case typically delineates a process for producing basic information – insurance, scope of work and project documents. Rather than treating these productions as part of a rote process, the parties should use the productions to identify and resolve potential settlement problems.

For example, is there an insurance issue that may impede settlement discussions? If so, who are the decision makers and what information do they need to address the issue? Is additional carrier participation needed? Have the carriers reached a time on risk agreement? Are there any outstanding Additional Insured issues? Many times, insurance related issues can be resolved through a conference call between the mediator and carrier representatives at a minimum, these calls identify decision makers and facilitate carrier analyses before the settlement conference.

Scope of work statement wins Clausewitz approval

The preparation of the scope of work statement is an opportunity for counsel to confirm an accurate picture of his client’s work. If a contract exists, does it accurately reflect the client’s work at the project? Did the client perform additional work? If the client is uncertain, will a site inspection refresh his memory? If there is a disagreement regarding the work a party performed at the project, the parties may use the statement as a springboard for an informal discussion between principals, an expert exchange at a defense allocation meeting or service of narrowly tailored formal discovery. This approach may be especially helpful for small parties who wish to exit the case early. Even if a scope of work issue is not conclusively resolved, addressing the matter early allows the parties to incorporate the issue into their case evaluations.

Don’t overlook client’s contract

In producing project documents, counsel should review his client’s contract and note if there is any attorney fee, duty to defend, indemnity or limitation of liability provision. No attorney should attend a settlement conference without first reading his client’s contract. Counsel should bring a copy of the contract, and any revisions, to all settlement conferences. Counsel also should educate himself regarding the overall project by visiting the document depository prior to any settlement conference.

The initial document production is also a time to assess whether all potentially responsible parties are in the case. A delay in involving a party and its carriers can have a significant impact on the case schedule and duration.

Develop an overall settlement strategy (Terms of Surrender) early on

It is important to develop an overall settlement strategy as far in advance of a settlement conference as possible. The discussion should address the potential structure of the parties’ settlement, the use of expert information and the timing of settlement demands.

As far as structure, will plaintiff only consider a global settlement? Will the lead parties allow peripheral party settlements? Can players with additional insured endorsements settle early? Will the lead parties consider settling around an unprepared or “problem” player?

Who will attend the settlement conference with authority to finalize any settlement agreement?

Experts are the big guns

The use of expert information plays a significant role in preparing an overall settlement plan. The experts generally focus on plaintiff’s biggest ticket item: the cost of future repairs. Alternatively, if the project is an income producing property, such as an apartment building, hotel or professional business, the experts may concentrate on repair scopes that minimize move out or business interruptions. Expert discussions throughout site inspections, testing, joint expert meetings and the preparation of a defense response assist the parties in defining potential problems and developing repair proposals and pricing. In developing a case settlement strategy, the parties should determine how they will use expert evaluations.

One option is the preparation of a joint scope of repair. The parties’ experts negotiate a compromise repair scope for the project, and a cost estimator bids the cost of implementing the scope, the estimator also bids areas of disagreement. Having quantified the difference between each side’s view of a reasonable repair, the joint scope allows the parties to evaluate a reasonable settlement range for the case. It also enables the parties to articulate solutions that may be unavailable at trial. Another option may be to price out the other side’s repair scope with the party’s own cost estimator. Regardless of how the parties decide to utilize expert information, they should address the issue in advance of the settlement conference.

Service of settlement plans (Terms of Surrender)

Service of timely settlement demands is another factor to be considered in a settlement plan. Sufficient time is needed after service of the demands to allow counsel to complete their evaluations and submit reports to principals and carriers. At least four weeks before the conference, plaintiff should serve its settlement demand with a breakdown of its claims (e.g. future repair costs, move out expenses, out of pocket expenditures, Stearman costs, attorneys fees.) At least three weeks before the conference, lead defense should serve settlement allocations on cross-defendants and, at the same time, circulate a draft settlement agreement, with key financial terms omitted, for all parties’ review and comment before the conference. During down time at the conference, the parties can negotiate settlement language; if the parties reach a settlement, they can execute the agreement at the conference and prepare to close their files.

In addition to a settlement plan, the participants privately should discuss and define the outcome that they hope to achieve through settlement before the conference. Based on an evaluation of a realistic cost of repair, Stearman fees, contract obligations, factual and legal issues, what is a reasonable opening number? What are the risks and costs associated with proceeding to trial? If successful at trial, will the party be able to collect on any judgement or recoup any costs from a viable party? What is the client’s tentative bottom line? At what level does trial become a better alternative to a negotiation agreement? With this information in mind, the participants should plan how they will move from offer to offer or demand to demand prior to the start of the settlement conference.

[Expenses associated with investigating defects and determining costs of repair are often recoverable as damages. These are often referred to as “Stearman costs” or “Stearman fees.” See Stearman v. Centex Homes (2000) 78 C.A. (4) 611.

The recover of investigation costs has been codified in Civil Code sec. 944.

The construction contract itself may contain a provision regarding attorneys fees, costs of suit and investigation expenses.]

Moving players towards settlement in a complex construction defect case is not easy. The process involves multiple players with variable and changing goals. Factual disputes, conflicting legal theories, late claims, missing parties and recalcitrant carriers create additional challenges. The early identification of case goals and settlement roadblocks and the creation of a general settlement plan and basic negotiation strategy may not remove all of these obstacles. Nonetheless, these preparations will open the door to meaningful settlement negotiations, and, ultimately, steer the participants to efficient case resolution.


This article was originally published in The Docket, Vol. 49, No. 1 (2013).

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July 23, 2012
Using Special Masters in Santa Clara

Complex construction defect cases often require a neutral to work with parties during the pretrial phase Litigationa Multiparty construction defect cases often require exceptional judicial management because they involve complex factual and legal issues and include large numbers of parties, attorneys, insurance companies and experts. Litigants frequently retain a referee or special master to work with the complex litigation judge by providing case management, addressing discovery disputes and/or facilitating settlements of these cases. This article is the fifth in a series that analyzes how different Bay Area courts utilize special masters in complex construction defect cases. Santa Clara County Superior…

Complex construction defect cases often require a neutral to work with parties during the pretrial phase

Litigationa

Multiparty construction defect cases often require exceptional judicial management because they involve complex factual and legal issues and include large numbers of parties, attorneys, insurance companies and experts. Litigants frequently retain a referee or special master to work with the complex litigation judge by providing case management, addressing discovery disputes and/or facilitating settlements of these cases. This article is the fifth in a series that analyzes how different Bay Area courts utilize special masters in complex construction defect cases.

Santa Clara County Superior Court has approximately 180 cases pending in its complex litigation department. This total does not include multiple cases under single case numbers, such as Judicial Council-coordinated proceedings and consolidated cases. Approximately 18 percent are active complex construction defect cases. Almost all of the construction defect cases utilize the services of a special master under the supervision of the complex civil litigation Presiding Judge James Kleinberg.

When filing a construction defect case, plaintiff may apply for a court order designating the case complex by checking the complex designation boxes on the civil case cover sheet. If the case is not initially designated complex, a case management judge, a records supervisor or a party may recommend or request a complex litigation designation. Kleinberg will render a decision on the recommendation or request based on his review of the complaint; no supplemental papers are required. Cases are assigned to the complex department for all purposes, including trial; complex fees are due after case designation. Unless exempted by court order, all complex actions are subject to the Court’s Electronic Filing and Service Standing Order. See www.scefiling.org.

Generally, if a construction defect case involves only two parties or a single home, the judge will leave the case with the assigned case manager, Judges Peter Kirwan, Patricia Lucas, Mark Pierce or Kevin McKenney; each of these judges manages approximately 1,400 cases. A party may file a formal motion if a complex designation application is denied.

Developer attorney David Stumbos explains that the lead parties generally select a special master before the first case management conference. “I literally start talking about the appointment during my first telephone call with plaintiff homeowners’ attorney.” Subcontractor attorney Cynthia Shambaugh notes that subcontractors usually go along with the lead parties’ recommendation. However, subcontractors are “questioning whether there should be a process to re-examine the lead parties’ candidate after the majority of subcontractors appear in the case.” If one or two smaller parties object to a special master, Stumbos will try to work with them to reach a consensus or secure a settlement. Otherwise, Kleinberg may exercise his discretion and appoint the special master over objections, as “on balance, it is more efficient to do so.”

Case management

Standard form case management conference statements are inappropriate for complex construction defect cases. Rather, Kleinberg directs the parties to file a joint case management statement at least 15 calendar days before a CMC; this statement may be incorporated into a special master status report. The statement or report must be in pleading format and include a case summary, description of anticipated problems, proposed time line and any information needed to prepare an efficient case management schedule. A special master report may be mailed or emailed to Kleinberg’s clerk, Rowena Walker. A statement or report in letter format will be disregarded. Special master email and phone updates are discouraged.

Kleinberg generally grants a special master CMC request. At any CMC, counsel should be prepared to give “an elevator speech” about his client’s case.

On the one hand, Kleinberg sees that it is “great to have a special master who is familiar with a complex construction defect case with its multiple layers of parties, insurers and related legal and factual issues. These types of cases would bog down the calendar tremendously.” However, Kleinberg emphasizes that he has a nondelegable duty to “keep cases current and move them along. I worry about cases that are around too long. Evidence gets stale. Witnesses pass on. Justice delayed is justice denied.” The special master should report case progress to Kleinberg in a written status report every 60 days. He will generally grant timely special master proposals if the special master has conferred with counsel and submitted a case management schedule.

Shambaugh expects the special master to “keep the ball rolling, and the schedule moving.” Stumbos sees the special master as a substitute for the court’s active management of a case. They both note that bankruptcies, insurance coverage issues and missing or uncooperative parties can prolong the resolution of a case beyond the 18 to 24 month goal set by Santa Clara’s complex department.

In moving a case forward, a special master should update all counsel. Shambaugh emphasizes: “Communications have to flow to all parties, not just the lead parties. Subcontractors and their adjustors want to be informed of reasons why dates come off and dates come on calendar.” Stumbos agrees. “There is no reason to not have open communications about the case schedule.” Both expect increased communications from the special master as a case nears trial.

Discovery disputes

In cases riddled with big discovery disputes, Shambaugh suggests hiring a special master to handle the disputes and a mediator to facilitate settlement discussions. “This avoids a conflict situation where a special master rules against a party in a discovery dispute and then has to deal with baggage at mediation.” Stumbos believes, “there is no clear answer for every case. When a neutral is not involved in discovery issues, she has less understanding of the case. That impacts the efficiency of mediation. Moreover, if someone has a discovery dispute decided against him and then has an issue with the special master, how is that different from a single assignment?”

A special master generally stays discovery and instructs the parties to produce project documents, scope of work statements and insurance disclosures and initially authorizes limited depositions. Plaintiffs also prepare a statement of claims and damages, and the defense analyzes and responds to the statement.

Stumbos and Shambaugh are frustrated by vague statements that do not provide sufficient information to allow the attorneys to evaluate claims, make recommendations to carriers and obtain appropriate settlement authority. Shambaugh further criticizes developers who simply pass on plaintiff numbers and refuse to prepare early defense bids to assist settlement discussions. “This keeps the game wide open and forces subs to prepare their own defense bids” or base their evaluation on settlements in other similar cases. Stumbos explains that a developer’s counsel is playing three dimensional chess, protecting his client’s interests, defending against the overall homeowners’ suit and prosecuting individual claims against subcontractors.

Despite these issues, Stumbos believes that the special master’s stay on discovery is better than open discovery under the Code of Civil Procedure. “Parties complain that there is not enough information, but lets go back 30 years. There was no early disclosure. The parties conducted the full pallet of written and oral discovery to obtain information. Cases became more numerous and expensive. Parties who were paying transactional costs looked for ways to manage expenses. The most cost-efficient solution was to stop discovery. Now the parties only get into full-blown discovery when they are looking down the double barrel shotgun of a trial date.”

Shambaugh believes that joint expert meetings provide an effective means of analyzing issues, determining areas of agreement and disagreement and highlighting issues deserving of further analysis. Stumbos adds, “Generally after a joint analysis, the delta between high and low is not that great.”

Kleinberg will review de novo any disputed special master discovery ruling. Prior to filing any motion, counsel must participate in an in person conference with the judge. Walker notes that since implementing the discovery conference requirement, the number of discovery hearings has significantly decreased.


Standard form case management conference statements are inappropriate for complex construction defect cases. Rather, Judge Kleinberg directs the parties to file a joint case management statement at least 15 calendar days before a CMC.

Settlement

Most special master settlement conferences are conducted at private offices. The special master also may conduct a settlement conference at the complex court by submitting a scheduling request to Walker. Absent any objection to the trial judge’s participation, Kleinberg will work with the special master at the conference.

Kleinberg may waive the personal appearance of a principal or an insurance representative at a settlement conference upon a written showing of good cause made to and approved by the court in advance of the conference. A principal or carrier who has not been excused from attendance may be sanctioned for failure to attend.

Shambaugh prefers settlement conferences where all of the subcontractors arrive at the same time. “All subs in a room ends the developer’s divide and conquer approach to settlement and allows the parties to compare their settlement demands.” Stumbos believes that a staggered agenda of starting times is more effective. “It is reasonable to set aside individual time with individual parties to talk about specifics. This is not effective in a group setting. There is some logic in having interfaced trades appear at same time of the day, so that the parties may talk separately and then together as a group.” Both counsel agree that parties should not leave a mandatory settlement conference before the parties have reached a resolution.

Kleinberg sees a “meaningful trial date as one of the best ways to get cases resolved. There is nothing like a trial date to focus the parties.” Accordingly, trial continuances are discouraged. However, if all parties agree, the special master may obtain available trial dates from Walker and thereafter submit a written request for a trial continuance to the pre-approved trial date. Any recommendation for a trial continuance must be supported by good cause. Jury selection begins on the first day of trial.

In summary, Judge Kleinberg supervises complex construction defect cases in Santa Clara County. The parties stipulate to the appointment of a special master in the majority of these cases very early in the litigation. A special master should report to the court every two months and work to keep the case current and moving forward. The court favors special master and joint status reports in pleading format and generally will grant special master proposals if the special master has conferred with counsel and submitted a timely case management schedule. Absent any objection to the trial court’s participation, Kleinberg will work with the special master in conducting a mandatory settlement conference in Santa Clara’s complex department. If the parties do not reach a settlement, counsel should be ready to select a jury on the first day of trial.


This article was originally published in The Recorder, Vol. 136, No. 30, on July 23, 2012.

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