Videoconferencing: Tips For Using Zoom For Remote Mediation
Tips For Using Zoom For Remote Mediation
Since the beginning of the pandemic, I have been conducting remote mediations with Zoom. Based on my experience with Zoom, I have collected tips for mediators, attorneys, clients, and other persons who will be participating in remote mediations conducted via Zoom. While a number of other platforms have been used, Zoom still appears to be the one most commonly used by mediators in Southern California. Many of the tips, though based on my experience with Zoom, are applicable to other platforms. I invite readers to add to my list of "Tips" either by emailing me at malexander@alvaradosmith.com, or by adding a comment to this post.
Mediation, Attendance, And Settlement: Parties Failing To Attend Probate Court-Ordered Mediation Could Not Complain About Settlement Reached By Participating Parties
Potential Beneficiaries Of Trust Received Notice, But Failed To Participate.
After Don Kirchner died in 2018, the successor trustee of Kirchner's living trust found a document listing 24 charities with handwritten notes appearing to be percentages for distributing the estate. The probate court confirmed the successor trustee and ordered mediation among interested parties. Apparently the parties received notice, but several parties, designated as the "Pacific parties," did not attend the mediation. The participating parties reached a settlement, the non-participating Pacific parties objected to the petition to confirm the settlement, and the probate court confirmed the settlement. The Pacific parties appealed. Breslin v. Breslin, B301382 (2/6 1/26/21) (Gilbert, Yegan, Tangeman).
Affirmed. "The probate court has the power to order the parties into mediation. (See Prob. Code, section 17206 . . . .)" The dispositive case is Smith v. Szeyller, 31 Cal.App.5th 450 (2019), holding that "a party who chooses not to participate in the trial of a probate matter cannot thereafter complaint about a settlement reached by the participating parties." True, the Breslin case involved a mediation, not a trial, but the mediation was court-ordered, and parties receiving notice could not blow it off without consequences.
COMMENT: An online obituary for Don Kirchner states, "Don was a generous man who loved God, loved his wife, loved his country, and his dogs (especially Lola, who was with him through his retirement years)."
Arbitration, Unconscionability: Third District Agrees That Solar Power Lease Agreement Contained Unconscionable Arbitration Provision
The Court Avoided Deciding Whether The McGill Rule Applied.
The Cabatits entered into a solar power lease agreement, and sued Sunnova Energy Corporation, alleging roof damage. The Court of Appeal affirmed the trial court's order denying Sunnova's motion to compel arbitration, because the arbitration provision was unconscionable. Cabatit v. Sunnova Energy Corporation et al., C089576 (3rd Dist. 1/29/21) (Mauro, Blease, Duarte).
Sunnova forfeited arguing that the issue of enforceability had been delegated to the arbitrator by failing to raise it in the trial court. Substantive unconscionability existed because the agreement was one-sided, allowing Sunnova to file lawsuits, while requiring customers to arbitrate, and the one-sidedness was not justified and supported by a showing of commercial need based on evidence. Procedural unconscionability existed because it was a "take it or leave it" contract of adhesion.
Sunnova argued that the arbitration provision was conspicuous. However, as the Court of Appeal explains, "[a] finding of procedural unconscionability is highly dependent on context." Here, the agreement was presented by a salesperson on an electronic device. The salesperson showed the Cabatits where to sign, but did not point out or explain the arbitration provision, and the Cabatits were not given a hard copy of the agreement.
COMMENT: The trial court had also concluded that the contract was unenforceable under the rule announced in McGill, which held an arbitration agreement waiving statutory remedies under the Consumer Legal Remedies Act, unfair competition law, and false advertising law is unenforceable. The Court of Appeal avoided the issue, since it agreed the agreement was unconscionable. Perhaps it also avoided the issue so as not to confront whether interstate commerce was involved, and whether the McGill rule was preempted by the Federal Arbitration Act?
Arbitration, Waiver: Second District, Div. 5 Holds Delay + Conduct Inconsistent With Arbitration + Prejudice Adds Up To Waiver Of Right To Arbitrate
Complaint Filed November 11, 2016 And Motion To Compel Arbitration Filed November 20, 2018.
Given two years elapsed between the time Plaintiff filed his putative class action wage and hour lawsuit, and the time Defendant filed its motion to compel arbitration, Defendant was going to have an uphill battle convincing the Court of Appeal that Defendant had not waived its right to arbitrate. Paul Garcia v. Haralambos Beverage Co., B296923 (2/5 1/4/21) (Kim, Baker, Moor).
The leading California case for analyzing waiver of the right to arbitrate is Agnes Medical Center v. PacifiCare of California, 31 Cal. $th 1187 (2003). Agnes lays out six factors to examine to determine if there has been a waiver of the right to arbitrate. Here, the court found three of the six to be present: undue delay, conduct inconsistent with asserting the right to arbitrate, and prejudice to the Plaintiff.
COMMENT: Courts do not like it when they whiff defendants delayed moving to compel arbitration while waiting to see if they could first accomplish favorable results in litigation. Perhaps the court caught a scent of that here, for Justice Kim wrote, "defendant here raised arbitration as a belated strategy, if not as a strategy of last resort."
Arbitration, FAA, Unconsionability: First Distriction, Div. 2 Holds FAA Does Not Apply To Transportation Workers And Agreement Is Unconsionable
Court Distinguishes Baltazar.
Plaintiff Sabid Ali sued Daylight Transport, LLC, claiming he had been misclassified as an independent contractor, and alleging various California labor violations. Daylight move to compel arbitration, failed, and appealed. Sabid Ali v. Daylight Transport, LLC, No. A157104 (1/2 12/31/20) (Kline, Richman, Miller) (partial pub.).
In the trial court, Daylight had claimed Federal Arbitration Act preemption. Under the FAA, parties engaged in interstate commerce are subject to the FAA, unless they are interstate transport workers. Daylight argued in the trial court that Sabid Ali was a trucker engaged in intrastate commerce within California, delivering goods after other truckers had move the goods in interstate commerce. This argument had no traction after cases holding that a truck driver who drove the intrastate portion of interstate trips for a transportation company was engaged in interstate commerce and therefore exempt from FAA preemption. Daylight abandoned the preemption argument on appeal, because its fallback argument was that the arbitration clause was binding under state or federal law.
However, Sabid Ali argued the arbitration provision was unconscionable, a defense he could have asserted whether or not the FAA applied, since under the FAA, state law defenses to the enforcement of a contract still exist.
The Court of Appeal, performing an unconscionability analysis under California law, explained that both procedural and substantive unconscionability existed. Therefore, the arbitration clause was not enforceable.
The most consequential part of the opinion explains why it mattered in this case that the contract did not include the AAA rules that it had incorporated by reference, distinguishing the case from Baltazar v. Forever 21, Inc., 62 Cal.4th 1237 (2016). In Baltazar, the party challenging the arbitration provision on the grounds that it did not include a copy of the AAA rules was not actually objecting to any specific element in the AAA rules. Here, however, Sabid Ali did object to the fact that the AAA rules provided for a sharing of expenses, as set forth in AAA Rule 54, and that this was "artfully hidden" by the incorporation of the rules. Thus, the court found this case to be distinguishable from Baltazar. That the AAA rule being challenged as unfair was "artfully hidden" weighed in the unconscionability analysis.
Arbitration, Choice Of Law, Nonsignatories: Foreign Nonsignatory To Partnership Deed Could Not Invoke Equitable Estoppel To Compel Arbitration
The Partnership Deed With The Arbitration Clause Was Entered Into In India, But The Court Applied US Federal Substantive Law To The Equitable Estoppel Issue.
Incense for sale in Bangalore. Author: Meanest Indian. Creative Commons License.
Appellant/Defendant Shrinivas Sugandhalaya LLP (SS Mumbai), in a lawsuit with Appellees/Plaintiffs (SS Bangalore), sought to enforce an arbitration provision in a Partnership Deed, relying on the doctrine of equitable estoppel. SS Mumbai failed in its efforts to compel arbitration, and appealed. Setty v. Shrinivas Sugandhalaya, No. 18-3557 (9th Cir. 1/20/21) (Nelson, Rawlinson, dissent, Bea).
The doctrine of equitable estoppel provides that one cannot accept the benefits of a contract and avoid the burdens, in this case, a requirement to arbitrate. SS Mumbai's problem was that the Partnership Deed containing the arbitration clause had been signed by two brothers, but SS Mumbai was a company and a nonsignatory. The majority opinion holds that federal substantive law must be applied to determine whether equitable estoppel can be applied to prevent the plaintiff from avoiding arbitration. Judge Nelson explains that under federal substantive law, for equitable estoppel to apply, "it is 'essential . . . that the subject matter of the dispute [is] intertwined with the contract providing for arbitration.' Rajagopalan v. NoteWorld, LLC, 718 F.3d 844, 847 (9th Cir. 2013)." Finding intertwinement to be lacking here, the majority held equitable estoppel did not apply, and thus, the arbitration provision could not be enforced against the nonsignatory.
Judge Bea has written an interesting dissent. For one thing, the facts of the case are interesting. Two brothers took over their father's incense business in India after the father died, and ended up as incensed competitors in a lawsuit involving federal trademark claims and state tort claims. The Partnership Deed was negotiated and entered into in India under Indian law. The father's firm was in Mumbai. SS Bangalore and SS Mumbai, nonsignatories to the agreement, were Indian companies owned by Indian nationals. Applying choice of law principles, Judge Bea opines that substantive Indian law would likely apply to the estoppel issue. He would have remanded to the district court to apply choice of law principles. The district court would then have had to determine which substantive law applied, and then apply the correct law to determine whether equitable estoppel could be applied.
COMMENT: Following the route proposed by the dissent would have added complexity, though it might have led to the same destination.