Tag Archives: Mediation

The McNaughton Rules: The Three Hats You Wear in Mediation

 
Michael McNaughton
July 28, 2015

Today, most civil cases are mediated or are referred to some other form of alternative dispute resolution. To be an effective litigator, you need to understand the different strategies and skill sets needed for a successful mediation, as compared to a trial.

At trial, the litigator’s primary audience is the judge and jury. The only real goal at trial is to persuade the judge or jury to rule and find in your favor. By contrast, at mediation, the litigator has at least three audiences, each having the power to affect its outcome: (1) opposing party; (2) your client; and (3) the mediator. If the case involves multiple parties or insurance carriers, the number of audiences may be still greater.

During the course of a mediation, the effective litigator needs to communicate to each of these audiences, who come with different goals, perspectives, and motivations. The message you send to each will be different and may seemingly conflict (e.g., opposing party needs to know the strength of your position; your client needs to understand its weakness). The challenge and art of mediation is to deliver these multiple messages, simultaneously or in tandem, while at the same time being persuasive, truthful and credible.

Continue reading The McNaughton Rules: The Three Hats You Wear in Mediation

How Confidential Is Mediation Confidentiality?

 
Michele Trausch
March 23, 2015

According to the court in Amis v. Greenberg Traurig, the answer is “airtight.”

Mr. Amis contended that he signed a settlement in mediation that resulted in personal exposure to him for his company’s corporate obligations.  He sued for malpractice, arguing that if the matter had been tried, he could not have been found personally liable.

Mr. Amis’s law firm moved for summary judgment as he was forced to concede that all the advice he received regarding the settlement was given during the mediation.  Thus, argued the firm, Mr. Amis could not produce evidence to support his claims and the firm could not produce evidence to defend itself.

Both the trial court and the Court of Appeal agreed, giving judgment to the law firm on the basis that any evidence would be barred by the mediation confidentiality statutes.

This case follows the California Supreme Court decision in Cassel v. Superior Court (2011) 51 Cal.4th 113, which held in part that the judiciary had no authority to craft its own exceptions to the mediation confidentiality statutes, regardless of the equities.

While obviously useful in defending a legal malpractice action, the analysis of Amis applies to any claim arising from conduct during a mediation.