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Articles About Mediation In July 2016 Edition Of Orange County Lawyer
The Subjects Are Appellate Mediation And Mediating Employment Disputes With Small Business Owners.
The July 2016 edition of Orange County Lawyer includes two worthwhile articles about mediation.
Rethinking the Impossible: Appellate Mediation.
By the time a case is on appeal, many attorneys and their clients view a case as far beyond the point of settlement. However, Kerry W. Franich, an attorney in Severson & Werson’s appellate practice group, emphasizes the benefits of appellate mediation. A judgment may provide an opportunity for revisiting settlement negotiations.
The opportunities presented by appellate mediation often flow from the passage of time: decision makers may have changed, parties may have changed, litigation objectives may have changed, and the law may have changed. In short, the door to settlement may not be shut.
COMMENT: Nevertheless, appellate mediation does not have as high a settlement rate as does mediation at the trial court level. Do any of my readers have statistics on settlement rates for appellate mediation?
We would add that a significant motivator for engaging in appellate mediation ought to be the rate of reversal on appeal in California. “With an overall statewide reversal rate of 36% in civil cases, an appeal does not necessarily end the litigation process – it may be only another step in a seemingly endless and costly road to resolution.” Hon. Jeff Kaplan (Ret.), “Practical Considerations for Post-Trial and Appellate Mediations,” Advocate (Fall 2013).
Reaching for Understanding: Mediating Employment Disputes With Small Business Owners.
David Ezra, an attorney with a practice focusing on ADR, insurance and employment law, considers the attributes of small business owners that “can make the mediation process especially challenging.” Mr. Ezra points out that small business owners are accustomed to making decisions with “no opportunity for consensus building or a second opinion.” Additionally, relationships in a small business can be highly personal and emotionally charged. “The mediator,” Mr. Ezra counsels, “needs to resist passing judgment.”
Mr. Ezra offers useful suggestions for dealing with the small business owner in mediation – and perhaps he will follow up someday with suggestions for helping the employee through the mediation process.
Pending Cases/Unconscionability: Magno v. The College Network, Inc. Is Ordered Published
Case Held That Arbitration Agreement Between Indiana Based Distance-Learning Partnership And California Licensed Vocational Nurses Was Unconscionable.
We can report that on July 8, 2016, Magno v. The College Network, Inc., D067687 (4/1 6/14/16) (McConnell, Nares, O’Rourke), a case we posted about on June 22, 2016, was ordered for publication. Perhaps the most notable part of the case is the weight that the Court gave to an Indiana forum selection clause for binding arbitration in determining that substantive unconscionability existed. Also, there was an absence of evidence that the plaintiffs, young nursing students, knew about the forum selection clause.
Arbitration, Fees, MFAA: Orange County Bar Association Co-Chairs Of Mandatory Fee Arbitration Committee Provide Helpful Tips On What Arbitrators Look For In Attorney Fee Arbitration
Interview In Orange County Lawyer Is Summarized Today In California Attorney’s Fees Blawg.
My colleague Mike Hensley and I publish a blawg about California Attorney’s Fees. A post today (July 10, 2016) in that blawg summarizes highlights of an interview appearing in the July 2016 edition of the Orange County Lawyer, in which the co-chairs of the Orange County Bar Association’s Mandatory Fee Arbitration Committee offer tips on what arbitrators look for in mandatory attorney fee arbitration.
On May 4, 2016, I posted about the Committee on Mandatory Fee Arbitration of the State Bar of California’s two new Advisories on Mandatory Fee Arbitration (MFA) brought under the Business & Professions Code. Advisory 2016-01, replacing Advisory 2011-02, is about the application of the Statute of Limitations for MFAs. Advisory No. 2016-02, replacing Advisory 2003-01, is an analysis of bill padding and other billing issues.
Arbitration, Employment: Second Dist., Div. 7 Reverses Judgment Denying Petition To Compel Arbitration And First Dist., Div. 4, Affirms Order Denying Employer’s Petition To Compel Arbitration
Notwithstanding the trend in SCOTUS to uphold arbitration agreements, including waiver of class arbitration, our next two unpublished cases show that the California courts look closely at arbitration agreements, sometimes enforcing and sometimes not enforcing arbitration agreements. On the same day, one California Court of Appeal reversed an order denying an employer’s effort to compel arbitration, while another California Court of Appeal affirmed an order denying a motion to compel.
Second District, Division 7, Reverses Judgment Denying Arbitration.
Finding the existence of an arbitration agreement and the lack of any substantive unconscionability, the Court of Appeal reversed the trial court’s denial of a petition to arbitrate. Urchasko v. Compass Airlines, LLC, B264672 (2/7 6/27/16) (Perluss, Segal, Blumenfeld) (unpublished).
The Court concluded the trial courted erred in ruling that the employee failed to agree to arbitrate. The trial court had based its ruling on lack of evidence that the employee checked a box on his electronic application; however, the Court of Appeal pointed out that there was no dispute the employee signed the printed application.
While there was some procedural unconscionability in a take-it-or-leave it contract, the Court concluded that the absence of any substantive unconscionability meant the arbitration agreement was enforceable.
First District, Division 4, Affirms Order Denying Employer’s Petition To Compel.
Collateral estoppel was the issue in Williams v. U.S. Bancorp Investments, Inc., A141199 (1/4 6/27/16) (Rivera, Reardon, Streeter) (unpublished): did a ruling in Burakoff et al. v. U.S. Bancrop, (L.A. Super. Ct., 2008), collaterally estop plaintiff/respondent Williams from bringing claims as a class action and bind him to an agreement to arbitrate individual disputes?
Williams, a financial consultant, filed a class action complaint against USBI in 2010 in the present case. The defendant argued that Williams belonged to a class that was certified, then decertified, in Burakoff, that because he was bound by collateral estoppel as a member of the decertified class, he could not file a class action, and that under a rule of the Financial Industry Regulatory Authority’s Code of Arbitration Procedure for Industry Disputes (FINRA rules), he would have to arbitrate.
No one disputed that Williams was a party to an arbitration provision, or that the FINRA rules provided that the arbitration provision could not be enforced against a class member. Therefore, under the FINRA rules, if Williams could not sue as a member of a class, because he was estopped by the class decertification in Burakoff, then Williams could not avoid having to arbitrate his individual claims.
California law provides that denial of class certification cannot establish collateral estoppel against unnamed putative class members on any issue because unnamed putative class members are not parties to the prior proceeding or represented in it. Bridgeford v. Pacific Health Corp., 202 Cal.App.4th 1034, 1044 (2012). Here, the situation was not so clear, because in the prior proceeding, the putative class members had first been certified, and thus arguably the interests of the absent class members were, at least for a time, represented.
The Court punted, and did not decide whether absent class members are bound by an earlier proceeding in which a class is first certified, then decertified. Instead, the Court simply ruled that the record was insufficient to compel a conclusion that the class to which Williams belonged was the same as the decertified class in Burakoff. Therefore, collateral estoppel did not apply.
This is probably not the end of the matter, because “the classes here and in Burakoff might ultimately be found to be indistinguishable.” Just not yet.
The order appealed from, denying a motion to compel arbitration and to dismiss the class complaint, was affirmed.
Mediation, Confidentiality: Allegations Of Malpractice In Connection With A Mediation Session Fail For Lack Of An Adequate Record
The Three Immutable Rules Of Appellate Practice.
“When practicing appellate law, there are at least three immutable rules: first, take great care to prepare a complete record; second, if it is not in the record, it did not happen; and third, when in doubt, refer back to rules one and two.” Protect Our Water v. County of Merced, 110 Cal.App.4th 362, 364 (2003).
The Third District instructed on these rules of appellate practice in Spanos v. Dreyer, Babich, Buccola & Callaham, LLP, C077235 (3rd Dist. 6/27/16) (Duarte, Robie, Renner) (unpublished), in which the plaintiff/appellant alleged malpractice in connection with a mediation session settling an underlying tort case and a related workers’ compensation claim. The outcome of the case would have turned on the application of the mediation privilege (Evid. Code, section 1119) – if there had been an adequate record.
Alas, the appellant failed to provide the operative complaint, and failed to augment the record. On an appeal from an order sustaining a demurrer, the Court must review the operative complaint to determine whether a cause of action is stated. Also, counsel for appellant failed to appear at oral argument.
Goodbye, appeal.