• 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…
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