James R. Lewis appointed as panelist Pro Tem Judge for settlement conferences in Placer County Superior Court

Mr. Lewis was appointed today as a panelist Pro Tem Judge for settlement conferences in Placer County Superior Court.  Members of the panel are respected, experienced attorneys who volunteer their time to assist the Court and civil litigants in resolving disputes before trial, which in turn preserves judicial resources and ensures timely access to the Courts for cases of all types.

James R. Lewis appointed to exclusive membership of Million Dollar Advocates Forum

James R. Lewis was appointed to the exclusive membership of Million Dollar Advocates Forum, a collection of the best trial attorneys in the United States.  Mr. Lewis joins an elite group of fewer than 200 California attorneys who have secured verdicts, settlements or awards for their client in excess of $1,000,000.00.

Congress woefully slow to act on ADR bills

Check out this excellent status of bills pending in Congress on a broad swath of ADR provisions in a variety of everyday disputes, from cell phones to corn.

Mediation fails because neither party had true authority - a must for any mediation

The NBA lockout and negotiations to end the lockout failed this week because neither the owner's representative nor the player's representative had authority to negotiate and agree on the one remaining crucial term.  As this reporter related, "There is no rational way to explain this behavior [failure to close the deal], so there has to be something wrong. And the only answer is that neither Stern nor Hunter had the authority to negotiate beyond his established position." Mediation only works if the true principals with authority to make a deal are present in person. Telephone standby, or a pre-determined budget given to an attorney or a fill-in insurance company claims representative is not the same as a principal with authority. Physical presence at a negotiation is necessary for several reasons: the principals show respect by both physically participating; neither side feels slighted or disregarded; the negotiation can proceed efficiently without representatives calling for more authority or to relay along critical new information learned at the session; and lastly, if the parties are close in terms, the parties know that all who are needed to commit to a deal are present and will sign off on binding agreement. Otherwise, a mediation without principals is fruitless and guarantees failure every time.

Strict Confidentiality is THE Key to Meaningful Mediation

Confidentiality at mediation is necessary, and it is not an evil necessity.  Confidentiality of the conversations and substance of mediation is equally critical to cases that settle and those that do not.  These days most parties to a successful mediation which ends in settlement do not want the results published or shared.  For those parties to a mediation that was not immediately successful in the first session, confidentiality is even more important.  It helps preserve negotiation position for later resolution sessions (a second mediation, arbitration, settlement conference, pre-trial conference).  If any substantial information is shared about mediation, then the parties' respective motivation and ability to continue settlement discussions are limited and sometimes destroyed.  The California Lawyer magazine recently published an article on the important of confidentiality at mediation. Now in the environment all parties to a dispute find themselves in (limited access to courts, escalating expenses), mediation is a critical part of every case.  It is no longer just an "option", it is a necessity.

Mediation Process Keeps Homeowners In Their Homes

Philadelphia court's standing order requires all parties to any foreclosure proceeding to meet their opposition face to to face to work out a resolution.  The result:  85% of participants were able to keep their homes.  The Philadelphia court system's program cost the city roughly $3,310.00 to save each home from foreclosure.  Philadelphia's program exemplifies the cost savings of mediation versus traditional litigation.  In the city of San Francisco, officials estimate it costs the city over $19,000 for each foreclosure.

Conflict Resolution Day - October 20, 2011

The Association for Conflict Resolution celebrates "CR Day" on October 20, 2011. The Association aims to celebrate an invaluable resource on the third Thursday in October. October has become a time to promote and celebrate peaceful conflict resolution practices worldwide. Dedicated dispute resolution practitioners are helping to educate the public about mediation and other innovative conflict management processes. The ABA declared the third week of October, “ABA Mediation Week,” in part building on the efforts of many other national, state, and local organizations, including the Association for Conflict Resolution (ACR) www.acrnet.org/crday which have been celebrating conflict resolution during the month of October. The ABA and ACR, as well as numerous other organizations, are working to raise awareness of the importance of mediation and conflict resolution.

Failure of jurors to report for duty prevents cases from reaching resolution.

It has become a widespread problem.  The large majority of jurors ignore the summons to appear for jury service in several states, and this has crippled the civil justice system.  Only 1 in 5 jurors report for jury service in one Texas county.  In one Indiana county, 20% of those summoned by the court do not show up for service or even respond to the summons.  In all courthouses, criminal, family, probate and juvenile cases take precedence over civil matters.  Disputes over personal injury, constructive defect, contracts, real estate and similar matters were delayed already and it is getting worse.  Mediation, private arbitration and neutral evaluation are more critical than ever with court resources being stretched even further, and with jurors not meeting their civil duty.  Parties interested in timely resolution of their disputes must consider choosing a neutral who can help the parties avoid the delays implicit to our modern civil justice system.

Mediation ordered by Court to avoid "litigation morass" - WaMu's final hope?

Mediation ordered to avoid "litigation morass". WaMu Reorganization Plan Fails.  U.S. Bankruptcy Judge orders thousands of claimants and stakeholders to pursue mediation. Judge says mediation required before lawsuit can proceed.  Most Northern California Superior Courts now require parties to submit to some form of Alternative Dispute Resolution.  Mediation is often the best ADR option because it provides candid, cost effective discussion and resolution at a fraction of the cost and time inherent in complex litigation.  Some counties (Contra Costa, Solano, Alameda) provide mediators who volunteer the first two hours of mediation, which makes mediation even more attractive.

Supreme Court decision on Howell case gives certainty to damages issues

On August 18, 2011, the California Supreme Court rendered a long-awaited opinion on the Howell v. Hamilton Meats Co. case. www.courtinfo.ca.gov/opinions/documents/S179115.PDF  The central issue was whether the negotiated reduced payment a plaintiff's health plan negotiates for the plaintiff [I call this the wholesale price of medical care] should be treated as a collateral source payment in the same way the actual payment from the health plan is considered a collateral source, and consequently whether a defendant is entitled to the benefit of that negotiated reduced rate.  The Court said in essence no, the difference between the wholesale rate and the retail rate is not a collateral source benefit and consequently the measure of a plaintiff's damages is what was paid, not what was charged [the retail rate].  This decision limits a plaintiff's damages, which is certainly a negative for plaintiffs and plaintiff attorneys across the board.  Evidence of the retail amount is admissible evidence before a jury, as is evidence of what was paid.  How the word "insurance" doesn't get uttered during all this dispute over retail vs wholesale rates and payments remains unresolved.  The Court's decision further modified what was a productive and predictable method of resolving the "paid vs. billed dispute" wherein most trial courts take on the proper measure of medical damages, i.e. post-verdict hearing on whether to reduce medical damages down to what was paid assuming the evidence is presented.  The decision does provide some certainty which was missing for several years as several disparate cases [Hanif, Nishihama, Howell, King, Cabrera] from several districts weaved their way through the appellate system.  A strong, knowledgeable mediator should know these issues and knows the current state of the law in order to be effective for the parties.

A proposal of mediation does not signal weakness

The prevailing perception about someone proposing mediation is that the proposer is dealing from a position of weakness or urgency; that the proposing party is anxious to resolve the matter and is willing to do so at a discount or premium depending on which side the party is on.  Rather, a proposal of mediation should be taken at face value, for what it plainly is, a proposal by the opposing party to informally resolve the dispute by a cost effective means.   The proposal should not become an assumption that the proposer is weak, anxious, eager or willing to severely compromise his or her prior position.  Such assumptions, or overly optimistic expectations, only set up the mediation and the parties for failure.  If you engage in mediation based on these assumptions you will only be disappointed by the outcome, the result will always fail to meet your expectations and you will have squandered a good opportunity to resolve the case.  An invitation to mediate should be understood as an invitation to discuss the dispute, narrow the issues and compromise.  Rather than perceived "weakness", a proposal of mediation shows confidence and an open-minded approach to resolution.  My experience is that mediation works best for those parties who enter into mediation with reasonable expectations, a willingness to listen and share, and with an objective of compromise.

Real Estate Dispute Resolves Through Mediation

I was appointed by the El Dorado County Superior Court to serve as one of two of mediators on a pending action filed by a homeowner who claimed the home mortgage and interest rate she ended up with was not the loan she applied and was approved for.  She claimed she did not know the loan could adjust from less than 1% interest rate to over 4%, effectively doubling her monthly payment, which it did over the next four years.  She subsequently lost several thousand dollars to a fraudulent loan modification program, which she claimed she would not have lost had she not been stuck with an adjustable rate mortgage.  She subsequently sued the mortgage officer, broker and the lender, a national bank.  At the outset of the conference, the parties were reluctant to discuss settlement or even engage in any substantive discussions of the issues.  In short, both were entrenched in their positions and unwilling to move.  One party was offended at being sued, the other felt hurt and betrayed.  After some encouragement from myself and my partner about the benefits of candid discussion of the issues and reassuring that there was nothing to lose by engaging in a confidential exchange of ideas, the parties got involved.  Once the parties began negotiating in earnest, a settlement was reached within a few hours.  Continued litigation of the matter, including experts, would have cost the parties tens of thousands of dollars.  The parties avoided those expenses and resolved the dispute for one-tenth of the expense of trial.  Both parties were relieved to put the dispute behind them, emotionally and financially.