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RANDOM THOUGHTS ON A FEW EFFECTIVE MEDIATION PRACTICES (Marx Mediation Memo #6) by Peter J. Marx, Esq.

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October 28, 2014 by AmyN

  1. An Underutilized Opportunity. Unlike litigation and arbitration, there is no prohibition against exparte communications with the mediator. Somewhat surprisingly, relatively few attorneys pursue such communications, notwithstanding their potential benefits. Is your client likely to be offended, for cultural reasons or otherwise, by certain seemingly innocuous phrases or gestures? Is either party pursuing the dispute by virtue of continuing dissatisfaction with, e.g., a previous on the job but unrelated matter? Such concerns may be irrelevant in court but can have a significant impact on how the mediation proceeds and indeed its success. Calling the mediator prior to the mediation session and discussing these matters allows advance preparation on how they might be addressed and indeed turned to good use. Remember, the parties control the process, and by taking the initiative counsel can provide the mediator with a bit of insight and establish greater likelihood of resolution.
  2. The Magic Words, or…. A settlement agreement reached at mediation is made enforceable by including the words that “it is admissible or subject to disclosure, or…enforceable or binding” (what I call the magic words) “or words to that effect.” Evidence Code 1123. A recent California Court of Appeal decision observed that while the mediation agreement, in the form of a stipulated judgment, did not use the “magic words,” it did provide that it would be the operable court judgment, and that the court would reserve jurisdiction, interalia, to supervise the overall enforcement of the judgment. Accordingly, the court held this language satisfied the “words to that effect” clause in section 1123, and the stipulated judgment was thus enforceable. While this appears to give 1123 exactly the effect suggested by its own language, a petition for hearing has been filed with the California Supreme Court. It will be interesting to see if the Supremes accept the case, but in any event, to be certain your mediation agreement is enforceable use the magic words themselves – it requires just one simple sentence in the agreement. This provides a convenient segue to our next topic…
  3. Bring a Draft Agreement. To expedite the process and to ensure any agreement is comprehensive, bring a draft agreement to the mediation. This particularly where certain language may not be easy to draft on the spot, e.g., ADEA language essential in an employment case where the plaintiff is over 40. In any event, on reaching agreement, don’t leave without signing something. If it’s necessary to add language later, draft and sign a simple agreement before leaving, providing that it is binding and enforceable but that counsel will draft a “long-form” agreement promptly.

Questions? Need to schedule a mediation? Contact me directly at the phone number or email address below, or contact my Case Manager at ARC, Ms. Nicole Bethurum, (310) 284-8224, nicole@arc4adr.com.

Peter J. Marx, (310) 442-0052, pmarx@arc4adr.com.


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