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Posts Tagged ‘mediation’

How Should a California Mediator Deal With An Unrepresented Party?

Posted on: June 17th, 2020

By: Greg Fayard

Most California mediators are lawyers. When mediator-lawyers handle a mediation where one party does not have a lawyer, the lawyer-mediator has to treat that pro per party differently than a party who has a lawyer.

Specifically, if the mediator suspects the unrepresented party does not understand the role of a mediator as compared to a lawyer, the mediator needs to explain the difference to the lawyer-less party. That is, the mediator needs to advise the pro per that he or she, as the mediator trying to resolve a dispute, is neutral and not representing anyone.

Under Rule 2.4 of California’s Rules of Professional Conduct, it is the job of the mediator to help the pro per party understand what mediators are and what they do, and how they are not advocates, and are different from lawyers.

If you have any questions or would like more information, please contact Greg Fayard at [email protected], or any other member of our Lawyers Professional Liability Practice Group, a list of which can be found at www.fmglaw.com.

Ready Camera One: Remote Litigation in the Era of Social Distancing

Posted on: April 7th, 2020

By: Jennifer Adair, Jennifer Markowski and Andy Treese

Evaluating claims to move them towards resolution or trial is the lifeblood of a defense practice. This typically requires direct interaction with a plaintiff and key witnesses, either at deposition (to hear their testimony, to form impressions of how they will be received by a jury), at mediation (to assure the plaintiff personally understands the strengths and weaknesses of the case), or at trial.  In person interaction is simply not as practical as it used to be and, in some places, it might be illegal.  It is not surprising that we have been fielding inquiries from claims professionals and their insureds about whether we can continue to move their cases forward by conducting discovery and settling claims in an age of social distancing. 

The answer is yes.  At Freeman Mathis & Gary our attorneys routinely take depositions remotely and have had great success with remote mediation.  Both, however, carry their own practical considerations.

  • Depositions.  Remote depositions have been around for well over a decade, but the increased demand is changing the marketplace.  Many lawyers who have never used or have avoided remote deposition technology no longer have a practical choice.  Some are adapting more quickly than others:  we have seen some opposing counsel take clean, effective depositions by video, but we have also seen opposing counsel take depositions that were not effective due to lack of familiarity with the technology and/or a misunderstanding of the different methodologies necessary to prepare for a remote deposition.  Counsel should consider several factors when preparing for and conducting an online deposition: 
    • Is this a deposition you are willing to take remotely?  Minor witnesses, some experts, or witnesses in cases with low exposure can probably be deposed remotely without concern.  Depending on the facts and exposure associated with the case, there may be some witnesses you may simply want to depose in person, even if it delays the case for 45-60 days. 
    • Prepare for your deposition at least two days early.  Identify the exhibits you are certain to use at the deposition and assure they can be presented cleanly to the witness.   For those that are obvious (complaint, incident report, interrogatory responses, etc.) consider having them pre-marked and distributed by email to opposing counsel, the witness and court reporter to speed the deposition along.  Also, identify documents you may want to use (medical records, photographs, etc.) and have those available and ready to present during the deposition. These can be circulated by email and shown to the participants using the screen sharing function of most videoconferencing technology.
    • Understand the technology. What program will be used? How will exhibits be presented?  Have you tested the video conferencing software or any other technology you need to use during the deposition?  How does the audio system work (i.e. can more than one person speak at a time or would an objection by counsel also inadvertently mute the witness’ microphone)?
    • Consider the logistics of the oath.  Who will place the witness under oath and where will they be?  Does your state permit oaths to be administered remotely?  Consider making a formal stipulation on the record that, due to the pandemic, the parties agree to the sufficiency of an oath administered remotely.
    • Decide how objections will be handled.  If it suits your purpose strategically, you and opposing counsel may choose to reserve some objections that would typically be made on the record.
    • Understand the cost and the final product.  How much is the vendor charging for this deposition as opposed to a standard deposition?  Are they generating a traditional transcript or is the deposition also being recorded?
    • Make a plan for confidentiality. If the witness is your client, plan in advance how you will communicate (by email, texting, etc.) during the course of the deposition to avoid inadvertent disclosures. Make sure you know how to turn off your camera and microphone or, better yet, go into another room to converse with your client.
    • Expect the deposition to take longer than usual. Don’t allow logistical limitations to curtail zealous representation.
  • Mediations.  Mediation and other forms of ADR are effective because a knowledgeable, competent mediator can provide litigants and their counsel on both sides a “reality check” as to the strengths and weaknesses of their cases.  The process works better when the mediator can speak directly to the parties and for that reason, our instinct in the past has been to require personal attendance at mediation.  So far, however, we have found remote mediation to make sense for several reasons:
    • Remote mediation is generally effective.   Some cases simply don’t settle until a mediator twists a metaphorical arm or two.   Is that effective when the literal arms aren’t in the same room as the mediator?   So far, anyway, the answer seems to be yes – when the technology works.  Where that is the case, mediators can still engage in private caucuses and have the ability to review or share exhibits, documents, etc. as needed.   We can envision specific cases where a video mediation might not be appropriate but so far, remote mediation has been getting cases resolved.
    • Remote mediations keep cases moving.  Governmental orders aside, many of our adjusters and risk managers have been restricted by their employers from non-essential travel for the foreseeable future.  Remote mediation presents a cost-effective opportunity to resolve cases now.
    • Remote mediation is cost effective (for now).  Most of our vendors are currently providing remote mediation services at no extra charge.  Remember, mediation centers are a business, too, and have a vested interest in keeping their dockets full by providing the technology and know-how to make mediation convenient to the parties, via Zoom or similar systems. 
    • Litigants may have a greater motivation to settle their claims when faced with the reality that jury trials for civil cases seem unlikely to take place for at least several months after state and local judicial emergencies resolve.
    • Attorneys want to keep cases moving, too. Counsel may view remote mediation as a step that can be taken towards trial.  Most courts already require ADR / mediation before trial.  Others are likely to being imposing that requirement to control their post-coronavirus dockets. 
    • Understand privacy issues related to the technology. Media reports suggest that Zoom and potentially other platforms are at risk for security issues.  Make sure the mediator provides a password for participants to gain access, and that meetings are locked so that nobody can join without the moderator’s permission. Ensure that the mediator has disabled the recording function, and that chat is not archived. Ask your mediator to send instructions in advance so that you are comfortable with the measures being taken, and can request any additional protections you deem appropriate.

At Freeman Mathis & Gary, our team will continue to monitor and report on the use of emerging technologies to litigate claims and obtain favorable outcomes for our clients.

Additional information:

The FMG Coronavirus Task Team will be conducting a series of webinars on Coronavirus issues on a regular basis. Topics include COVID-19’s impact on finances and loans, the FFCRA, the CARES Act and more. Click here to register.

FMG has formed a Coronavirus Task Force to provide up-to-the-minute information, strategic advice, and practical solutions for our clients. Our group is an interdisciplinary team of attorneys who can address the multitude of legal issues arising out of the Coronavirus pandemic, including issues related to Healthcare, Product Liability, Tort Liability, Data Privacy, and Cyber and Local Governments. For more information about the Task Force, click here.

You can also contact your FMG relationship partner or email the team with any questions at [email protected].

**DISCLAIMER: The attorneys at Freeman Mathis & Gary, LLP (“FMG”) have been working hard to produce educational content to address issues arising from the concern over COVID-19. The webinars and our written material have produced many questions. Some we have been able to answer, but many we cannot without a specific legal engagement. We can only give legal advice to clients. Please be aware that your attendance at one of our webinars or receipt of our written material does not establish an attorney-client relationship between you and FMG. An attorney-client relationship will not exist unless and until an FMG partner expressly and explicitly states IN WRITING that FMG will undertake an attorney-client relationship with you, after ascertaining that the firm does not have any legal conflicts of interest. As a result, you should not transmit any personal or confidential information to FMG unless we have entered into a formal written agreement with you.  We will continue to produce education content for the public, but we must point out that none of our webinars, articles, blog posts, or other similar material constitutes legal advice, does not create an attorney client relationship and you cannot rely on it as such. We hope you will continue to take advantage of the conferences and materials that may pertain to your work or interests.**

As of 1/1/19 California Lawyers & Clients Going To Mediation Have To Sign This

Posted on: December 19th, 2018

By: Greg Fayard

Come January 1, 2019, California lawyers who participate in mediations will need to provide written disclosures to their clients explaining mediation confidentiality. Further, California lawyers must get written acknowledgment from clients that they understand mediation confidentiality before participating in mediation. This requirement does not apply to class actions, however. The new law is a new statute in the Evidence Code pertaining to mediations–Section 1129.

The following disclosure satisfies the new law, so long as it is in 12-point font, in the preferred language of the client, and on a stand-alone, single page. Both the attorney and client have to sign and date the disclosure.

Mediation Disclosure Notification & Acknowledgment

To promote communication in mediation, California law generally makes mediation a confidential process. California’s mediation confidentiality laws are laid out in Sections 703.5 and 1115 to 1129, inclusive, of the Evidence Code. Those laws establish the confidentiality of mediation and limit the disclosure, admissibility, and a court’s consideration of communications, writings, and conduct in connection with a mediation. In general, those laws mean the following:

  • All communications, negotiations, or settlement offers in the course of a mediation must remain confidential.
  • Statements made and writings prepared in connection with a mediation are not admissible or subject to discovery or compelled disclosure in noncriminal proceedings.
  • A mediator’s report, opinion, recommendation, or finding about what occurred in a mediation may not be submitted to or considered by a court or another adjudicative body.
  • A mediator cannot testify in any subsequent civil proceeding about any communication or conduct occurring at, or in connection with, a mediation.

This means that all communications between you and your attorney made in preparation for a mediation, or during a mediation, are confidential and cannot be disclosed or used (except in extremely limited circumstances), even if you later decide to sue your attorney for malpractice because of something that happens during the mediation.

 

I, _____________ [Name of Client], understand that, unless all participants agree otherwise, no oral or written communication made during a mediation, or in preparation for a mediation, including communications between me and my attorney, can be used as evidence in any subsequent noncriminal legal action including an action against my attorney for malpractice or an ethical violation.

NOTE: This disclosure and signed acknowledgment does not limit your attorney’s potential liability to you for professional malpractice, or prevent you from (1) reporting any professional misconduct by your attorney to the State Bar of California or (2) cooperating with any disciplinary investigation or criminal prosecution of your attorney.

(Signature)

[Name of Client] [Date signed]

(Signature)

[Name of Attorney] [Date signed]”

 

This disclosure must be provided to clients and signed as soon as reasonably possible before the client agrees to mediate. However, not obtaining a proper signed acknowledgment from a client is not a basis to set aside an agreement prepared for, in the course of, or pursuant to mediation. (Evid. Code, § 1129, subd. (e)). Attorneys can be disciplined for not complying with the new law, however. (Evid. Code, § 1122,, subd. (a)(3)).

What prompted this new law? First, it addresses the lack of client awareness of confidentiality at mediation. Second, attorneys were able to avoid mediation professional liability claims through the cloak of confidentiality. To address attorneys escaping mediation liability claims, a communication, document or writing related to the attorney’s compliance with the new law is admissible in an attorney disciplinary proceeding (unless the document discloses something said or done during mediation).

In sum: If a California lawyer plans to mediate, he or she should prepare the above disclosure and calendar the client’s prompt signature before the mediation.

If you have any questions or would like more information, please contact Greg Fayard at [email protected].