Categories : Law Practice Management
Tips for Preparing for a Successful Mediation
You have agreed to mediation. What should you do now?
Categories : Wisdom
Steps Toward More Effective Mediation
By Charles H. Dick
Most civil disputes will be resolved before trial,1 and mediation has become one of the most important phases of every lawsuit. Even so, the informality of mediation induces many less-experienced litigators to take a casual attitude toward the process. Too often, lawyers approach mediation as if it were the easiest phase of a lawsuit; this is serious mistake. If pleadings, discovery and motion practice warrant hours of planning, thought and effort, why treat mediation any differently?
Categories : Law Practice Law Practice Management
Policy Limit Demands Vs. Mediation Confidentiality: Part 1
By Richard A. Huver
Is the lid off the policy? That question has undoubtedly been asked by plaintiff and defense lawyers alike. Whether an insurance company has a duty to accept a policy limits demand is generally an individualized question dependent on many factors, including the timing of the demand, the information available on both liability and damages, and the likelihood of a verdict in excess of the policy limits. Evaluating how these factors apply to a demand made during the claim process or litigation is one thing. But what happens if the policy limits demand is made incident to or during a mediation?
Categories : Legal Ethics
Amendments to California Evidence Code Will Require Attorneys Ensure Their Clients Understand that What Happens in Mediation, Stays in Mediation
By Andrew Servais
An amendment to the California Evidence Code on mediation confidentiality will require attorneys representing clients in connection with mediation to provide written disclosures to their clients about mediation confidentiality beginning January 1, 2019.
California law and public policy provide that all communications that take place in anticipation of and at mediation are confidential. “To carry out the purpose of encouraging mediation by ensuring confidentiality, the statutory scheme . . . unqualified bars disclosure of communications made during mediation absent an express statutory exception.” Even after mediation ends, communications and writings protected by the statutes are to remain confidential.
The restrictions on disclosure of mediation communications has been vigorously debated following the California Supreme Court’s decision in Cassel v. Superior Court (2011) 51 Cal.4th 113 confirming the broad scope of mediation confidentiality in holding a party to a mediation may not use confidential information obtained in the mediation to sue his or her attorney for alleged legal malpractice occurring at the mediation. (Cassel v. Superior Court, supra, 51 Cal.4th 113, 128 [Evidence Code section 1119 extends to “oral communications made for the purpose of or pursuant to a mediation, not just to oral communications made in the course of the mediation.”])
Although the new amendment does not provide any exception allowing disclosure in malpractice or other lawsuits, it will attempt to ensure clients understand the restrictions on mediation communications before participating in mediation by providing that except “in the case of a class or representative action, an attorney representing a client participating in a mediation or a mediation consultation shall, as soon as reasonably possible before the client agrees to participate in the mediation or mediation consultation, provide that client with a printed disclosure containing the confidentiality restrictions described in Section 1119 and obtain a printed acknowledgment signed by that client stating that he or she has read and understands the confidentiality restrictions.” (Cal. Evid. Code § 1129 (a).) Subdivision (d) specifies the “disclosure” language deemed to comply with subdivision (a) if it is (1) “printed in the preferred language of the client in at least 12-point font”; (2) “printed on a single page that is not attached to any other document provided to the client”; and (3) includes “the names of the attorney and the client and be signed and dated by the attorney and the client.”
As stated, the written disclosure must be provided “as soon as reasonably possible before the client agrees to participate in the mediation or mediation consultation…” Given the prevalence of mediation in civil litigation, providing the written disclosure sooner than later to allow for client inquiries is in the best interests of both the client and practitioner.
Andrew Servias is an attorney at law.
**No portion of this summary is intended to constitute legal advice. Be sure to perform independent research and analysis. Any views expressed are those of the author only and not of the SDCBA or its Legal Ethics Committee.**
Categories : Medical Malpractice
Mediation vs. Arbitration in Medical Malpractice
What are the differences between mediation and arbitration when it involves medical malpractice? Here is some general information.
If you find yourself in the middle of a medical malpractice lawsuit, then you may be happy to know that there are alternatives to taking the case to court.
In fact, most med mal cases never go to court.
Instead, many people choose to go through mediation or arbitration in order to settle the lawsuit. Some even require it, such as Kaiser Permanente, which requires patients who carry Kaiser insurance to submit to arbitration.
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