Surprise! In order to compel arbitration, the other party must have signed the arbitration agreement

California's Second District Court of Appeal affirmed a trial court's denial of an employer's petition to compel arbitration of a sexual harassment claim, based on....the fact that the employee never signed the new employee handbook which contained a mandatory arbitration clause for all employment matters.  The employer argued that the employee knew the clause existed, and she was in charge of getting all employees (including herself) to sign the employee handbook.  The appellate court again denied the employer's petition to compel arbitration, stating "the trial court properly inferred from [employee's] election not to sign the arbitration agreement that she did not intend to be bound by it."  Further evidence of the old adage, "GET IT IN WRITING"

Wrongful Death Claims Settled...

My clients were the wife and three adult daughters of husband "Joe".  Joe died in the hospital from injuries he sustained two weeks prior  in a two-vehicle car accident on the interstate.  Joe was a passenger in his drunk friend's car when his friend rear-ended a legally stopped vehicle.  The driver's insurance company (another large national company) was quick to settle, but on its terms.  It quickly tendered its policy limit to my clients but it wanted my clients to prove a negative, namely that Medi-Care did NOT have a right to reimbursement from the settlement.  Medi-Care had already confirmed, in writing, that it did not pay any bills for Joe and therefore was not seeking reimbursement.  This was not good enough for the insurance company, because it knew Joe was a Medi-Care member and it wanted to know why Medi-Care did not pay.  After months of convincing and stating the same facts over and over, the insurance company saw the light and paid its policy limits to my four well-deserving clients.  I was happy to bring closure to this family and help them move on.

Insurance carrier denies any other policies apply...WRONG

My client, a passenger in a vehicle driven by her cousin, was ejected when the vehicle hydroplanes on a wet highway.  She was taken by ambulance to the ER with severe injuries including a traumatic brain injury.  The cousin was driving her uncle's vehicle.  The uncle only has $50,000 in coverage, which is quickly tendered to my client.  The driver did not have her own auto coverage, or so we are told.  My client's medical bills exceed $1,500,000.00.  Luckily a government program gets involved and pays them all.  Nonetheless, client is still severely injured and the large national insurance company is pushing the $50,000 policy limit.  After months of questions, letters, filing suit and subpoenaing people for depositions I confirm that there is an additional auto policy for $25,000, which was the driver's mother's policy.  It extended to the daughter via a standard "resident relative" clause in every auto policy.  Although small consolation or compensation for her injuries the additional $25,000.00 was important to my client.  It was also something additional that the large national insurance company had claimed did not exist.  It was ready to lie and pressure my client into signing away everything for only $50,000, for what the insurance company was positive was the only available coverage.  Lesson learned here: DO NOT TRUST AN INSURANCE COMPANY, EVEN YOUR OWN, TO TELL YOU THE TRUTH.

James R. Lewis Honored by SUPER LAWYERS

James R. Lewis was named as a Northern California Rising Star by Super Lawyers.  Mr. Lewis joins an exclusive list of the top up-and-coming attorneys in Northern California for 2012.  Attorneys selected for inclusion in the list of Super Lawyers and Rising Stars are nominated by their peers before undergoing "rigorous" evaluations in a number of areas of "peer recognition and professional achievement," according to Super Lawyers selection process. The objective, the magazine says, is to "create a credible, comprehensive and diverse listing of outstanding attorneys." Recognition is based on surveys of approximately 52,000 active lawyers in Northern California, independent research by Super Lawyers magazine, and review and recommendation by practice-area panels of top lawyers.

Judge Pro Tem Experience

I volunteered four hours this morning at the Placer County Superior Court as an appointed Judge Pro Tem.  Handed two cases to try and help resolve.  One was a smaller case, with an in pro per plaintiff and a large national insurance carrier on the defense.  Both parties were reasonable, put their confidence in me, and we negotiated a respectable resolution that removed risk for all involved, save thousands in litigation expenses and preserved court resources.  My experience and reputation with the defense attorney and claims representative from the carrier were important in efficiently resolving the case.  Other case involved an injury causation dispute from a major motor vehicle accident.  This was the type of case on which reasonable minds could differ, which they did and continue to do.  Neither party was mean or disrespectful about their positions, but were firm in their principles.  And both were prepared for trial in two weeks.  Despite spending two hours with the parties, could not come to any common ground.

Get Inside Your Opponent's Head!

Author and Forbes magazine columnist Victoria Pynchon writes, "In short, negotiation requires hard heads rather than soft hearts".  Despite what you might think about the other side and their motivations, the parties have to work collaboratively to resolve the dispute.  While it might not be overt collaboration, the process of recognizing the other party's perspective, accounting for it and responding to it with respectful disagreement or alternatives is collaboration.  

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.