Incubator Programs &Alternative Dispute Resolution –

“ADR”

PART I: INCUBATOR PROGRAMSProf. Laura Cohen & CSO Assc. Dir. Katrina Denny

PART II: MEDIATION & SETTLEMENT CONFERENCESProfessor Reagan E. Boyce ‘06

PART III: ARBITRATIONProfessor Roxanne Crocket ’03

Mediation & Settlement

ConferencesProfessor Reagan E. Boyce ‘06

Ezra Brutzkus Gubner LLP

WHAT IS MEDIATION

• CONDUCTED BY A MEDIATOR OR A THIRD PARTY NEUTRAL• OPPORTUNITY TO SETTLE BEFORE TRIAL• OPPORTUNITY TO LEARN THE STRENGTHS

AND WEAKNESSES OF THE CASE• OPPORTUNITY TO EDUCATE YOUR CLIENT

Role of the Mediator

• A Mediator is not a judge or an Arbitrator

• Mediator does not make findings of fact or law

• Mediator is a facilitator of discussions and negotiations

Commencement of Mediation

• Court Ordered (e.g. Federal Court ADR selection)

• Contractual (e.g. real estate listings, construction contracts)

• Voluntary Agreement or Stipulation

Preparing for Mediation• Successful Mediation requires Preparation

• Be aware of the ---– Elements of the stated causes of action– Strong and weak points of your case

• Meet with your Clients– Let them know what to expect– Legally and

procedurally – Discuss a list of goals, including “Must Haves”

• Do not create unreasonable expectations or goals

Who should attend?• All persons whose approval to settle is needed

must attend.

– Exceptions?

• A person who is unable to control their conduct should not attend.

• With Court or Mediator prior approval a party may be immediately available by telephone

• Government Agency

Mediation Briefs• Not required by Court Rule

• Filing & Content are at discretion of Mediator

• Confidential or shared with all parties

– Keep it BRIEF

– Educate the mediator

– Summarize the case and your client’s possession

THE 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

Mediation Procedure• Parties select a Mediator from a Court Panel

or hire a private Mediator:

– Mediator will perform a conflict check

– Alternate Mediator selected if there is a conflict or time problem

– ADR Services, Adjudicate West, etc.

Mediation Procedure• Mediation Date and Location are selected:

– Location- Office of the Mediator or a Party

– Date- At any stage of the proceedings

• Pre-litigation– some contracts require mediation, e.g. construction contracts, real estate listings

• Early ADR before Discovery

• Prior to Trial

Mediation Procedure• Conduct of mediation is determined by the

Mediator--- not Court Rules

• Joint Session

– Mediator introduces the parties

– Confidentiality Agreement [See Exhibit]

– Mediator sets the ground rules

– Attorney or a party summarizes the case

Mediation Procedure• Separate Caucasus Sessions

– Mediator “shuttles” between the parties

– Confidential discussions

– Exchange of offers/counter offers

• Final Joint session

Benefits of Mediation• Parties have an opportunity to talk

• Mediation is less expensive than litigation

• Mediation is faster than litigation

• Agreements are enforceable– Parties may have their agreement reduced

to a judgment

Benefits of Mediation• Parties control the process

– No one can be forced to enter into an agreement

• Confidential (on two levels)

– Confidentiality Agreement– Discussions and offers made at the Mediation are not admissible in Court and may not be used in discovery. Mediator may not be called as a witness.

– Mediator will maintain confidentiality of facts and offers disclosed in private sessions.

Reasons Mediations Fail

• Parties with Settlement Authority don’t attend

• Parties don’t negotiate in good faith– it wastes everyone’s time

• No Determination of Facts or Issues of Law

• Non-Cooperative party— Success depends on good faith participation

Settlement Conferences

• What is the Difference?– CONDUCTED BY A JUDGE, NOT A

MEDIATOR/ARBITRATOR– EARLY OPPORTUNITY TO FIND OUT THE OTHER

PARTY’S CASE STRENGTHS AND WEAKNESSES– LAST OPPORTUNITY TO RESOLVE DISPUTE SHORT

OF TRIAL OR ARBITRATION

FEDERAL ADR• 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

FEDERAL MEDIATION

• MOST DISTRICTS REQUIRE EARLY MEDIATION – EITHER PRO BONO/PAID

• WILL BE ASSIGNED TO MEDIATION AS PART OF THE INITIAL CASE STATUS CONFERENCE

• BANKRUPTCY ALSO REQUIRES EARLY MEDIATION FOR ADVERSARY PROCEEDINGS

(LITIGATION RELATED TO THE BANKRUPTCY)

RESOURCES

COUNTY WEBSITESCHECK FOR UPDATED INFORMATION

RE: ADR PROGRAMS

Current list is included in materialson GAP website

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