looking beyond law firm positions and alternative dispute resolution – “adr” part i:mediation...
TRANSCRIPT
Looking Beyond Law Firm Positions
and
Alternative Dispute Resolution – “ADR”PART I: MEDIATION
Professor Gary G. Geuss ‘86
PART II: SETTLEMENT CONFERENCESProfessor Reagan Boyce ’06
PART III: ARBITRATIONProfessor Roxanne Crocket ’03
PART IV: INCUBATORS & ALTERNATIVE CAREERSProf. Laura Cohen; CSO Asst. Directors Katrina Denny & Andrea Ayvazian
THE SETTLEMENT CONFERENCE
• MANDATORY SETTLEMENT CONFERENCE [“MSC”]
• VOLUNTARY SETTLEMENT CONFERENCE [“VSC”]
• FEDERAL COURTS
WHAT IS A MANDATORY SETTLEMENT CONFERENCE?
• FINAL ATTEMPT TO SETTLE BEFORE TRIAL• CONDUCTED BY A JUDGE, NOT A
MEDIATOR/ARBITRATOR• FREE OPPORTUNITY TO RESOLVE DISPUTE
SHORT OF TRIAL
WHO IS THE NEUTRAL?
• JUDGE, NOT A MEDIATOR OR ATTORNEY
• DIFFERENT JUDGE THAN TRIAL JUDGE
• CHANGES DUE TO BUDGET CUTS – SOME COURTS HAVE DISCONTINUED
MSC BRIEF
• IDENTIFY THE PARTIES AND COUNSEL• FACTUAL BACKGROUND• PROCEDURAL BACKGROUND• LEGAL POSITION OF THE PARTIES• APPLICABLE LAW• PRIOR SETTLEMENT ATTEMPTS• KEY EXHIBITS
PREPARATION FOR MSC• KNOW THE FACTS OF YOUR CASE
• KNOW APPLICABLE LAW AND LEGAL ISSUES
• KNOW CLIENT’S POSITION
• KNOW OPPOSING PARTY’S POSITION
• BE PREPARED TO ARGUE STRENGTHS OF YOUR CASE/WEAKNESSES OF OPPOSING PARTY’S
PREPARATION FOR MSC• KNOW WHAT YOUR CLIENT WANTS IN ORDER TO
SETTLE
• IDENTIFY ANY KEY DOCUMENTS/EXHIBITS TO SUPPORT YOUR POSITION
• HAVE AUTHORITY TO SETTLE – KNOW WHAT TERMS ARE ACCEPTABLE TO THE CLIENT
• KNOW THE JUDGE’S EXPECTATIONS – INFORMED, READY TO PARTICIPATE, ABLE TO SETTLE
WHO MUST ATTEND• TRIAL COUNSEL (OR KNOWLEDGEABLE
COUNSEL IF TRIAL COUNSEL UNAVAILABLE)
• CLIENT OR CLIENT REPRESENTATIVE
• ANY OTHER PARTY WHO HAS SETTLEMENT AUTHORITY– CLAIMS ADJUSTER– INSURANCE COMPANY REPRESENTATIVE– CORPORATION OFFICER/DIRECTOR
WHAT IS A VOLUNTARY SETTLEMENT CONFERENCE?
• EARLY ATTEMPT AT SETTLEMENT
• CONDUCTED BY A JUDGE, NOT A MEDIATOR/ARBITRATOR
• FREE OPPORTUNITY TO RESOLVE DISPUTE SHORT OF TRIAL
WHY EARLY SETTLEMENT ?
• OPPORTUNITY TO DISCOVER OPPOSING PARTY’S POSITION
• EDUCATE THE CLIENT
• OPPORTUNITY TO SAVE CLIENT MONEY
EARLY EVALUATION OF THE CASE
• LEARN THE STRENGTHS/WEAKNESSES OF THE CASE• LEARN THE OTHER PARTY’S THEORY OF THE CASE
EDUCATE THE CLIENT
• OPPORTUNITY FOR CLIENT TO LEARN IF STRONG/WEAK POSITION
• SECOND “INFORMED” OPINION FOR YOUR CLIENT TO HEAR
• JUDGE CAN SOMETIMES USE “POWER OF THE ROBE” TO GET POINT ACROSS
SAVE THE CLIENT MONEY• OPPORTUNITY TO SETTLE BEFORE EXPENDING
MONEY ON DISCOVERY, ETC.
• AVOID EXPENSIVE LAW/MOTION DISPUTES
• SOME CASES ARE CLEAR CUT, JUST NEED OPPORTUNITY FOR PARTIES TO TALK
COUNTY WEBSITESCHECK FOR UPDATED INFORMATION
RE: ADR PROGRAMS
Current list is included in materials on GAP website
FEDERAL COURTS• OFFER MEDIATION, SETTLEMENT CONFERENCES, EARLY
NEUTRAL EVALUATION
• LOCAL RULES CONTROL THE PROCEDURES RELATED TO EACH
• DIFFERENCES BETWEEN DIFFERENT DISTRICTS AND BANKRUPTCY COURTS
• SOME COURTS HAVE SEPARATE “ADR RULE BOOK” THAT GOVERNS PROCEDURES
• LOCAL RULES, GENERAL ORDERS, JUDGE’S STANDING ORDERS, COURT MANUAL
MEDIATION IS OFTEN MANDATORY
• CENTRAL AND NORTHERN DISTRICTS REQUIRE EARLY MEDIATION – PRO BONO/PAID
• WIL BE ASSIGNED TO MEDIATION AS PART OF INITIAL CASE STATUS CONFERENCE
• BANKRUPTCY ALSO REQUIRES EARLY MEDIATION FOR ADVERSARY PROCEEDINGS
EARLY NEUTRAL EVALUATION
• SIMILAR TO VSC
– PURPOSE IS TO EDUCATE THE PARTIES AS TO STRENGTHS/WEAKNESSES
– NOT A FORMAL SETTLEMENT ATTEMPT
– ENCOURAGES PARTIES TO SEEK SETTLEMENT AFTER EVALUATION
SETTLEMENT CONFERENCES
• SIMILAR TO MSC
–OFTEN LATER IN THE CASE AFTER DISCOVERY COMPLETED
–PRE-TRIAL LAST EVALUATION
–MAGISTRATE JUDGES OFTEN CONDUCT
WEBSITES• LOS ANGELES COUNTY SUPERIOR COURT
WWW.LASUPERIORCOURT.ORG
• ORANGE COUNTY SUPERIOR COURT WWW.OCCOURTS.ORG
• VENTURA COUNTY SUPERIOR COURT WWW.VENTURA.COURTS.CA.GOV
• RIVERSIDE COUNTY SUPERIOR COURT WWW.RIVERSIDE.COURTS.CA.GOV
• SAN BERNARDINO COUNTY SUPERIOR COURT WWW.SB-COURT.ORG
• CENTRAL DISTRICT CALIFORNIA WWW.CACD.USCOURTS.GOV WWW.CACB.USCOURTS.GOV
• NORTHERN DISTRICT CALIFORNIA WWW.CAND.USCOURTS.GOV WWW.CANB.USCOURTS.GOV
• EASTERN DISTRICT CALIFORNIA WWW.CAED.USCOURTS.GOV WWW.CAEB.USCOURTS.GOV
• SOUTHERN DISTRICT CALIFORNIA WWW.CASD.USCOURTS.GOV WWW.CASB.USCOURTS.GOV