Contra Costa Lawyer, September 2015

Volume 28, Number 5 | September 2015

Alternative

Contra Costa

LAWYERDispute Resolution

SEPTEMBER 20152

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Contra Costa CoUntY Bar assoCIatIon CONTRA COSTA LAWYER 3

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Contra Costa

LAWYERVolume 28 Number 5 | September 2015

B A R A S S O C I A T I O N

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The Contra Costa Lawyer (ISSN 1063-4444) is published 12 times a year - 6 times online-only - by the Contra Costa County Bar Association (CCCBA), 2300 Clayton Road, Suite 520, Concord, CA 94520. Annual subscription of $25 is included in the membership dues. Periodical postage paid at Concord, CA. POSTMASTER: send address change to the Contra Costa Lawyer, 2300 Clayton Road, Suite 520, Concord, CA 94520. The Lawyer welcomes and encourages articles and letters from readers. Please send them to [email protected] CCCBA reserves the right to edit articles and letters sent in for publication. All editorial material, including editorial comment, appearing herein represents the views of the respective authors and does not neces-sarily carry the endorsement of the CCCBA or the Board of Directors. Likewise, the publication of any advertisement is not to be construed as an endorsement of the product or service offered unless it is specifically stated in the ad that there is such approval or endorsement.

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FEATURES

DEPARTMENTS

4 INSIDE | by John Cavin

5 PRESIDENT’S MESSAGE | by Nick Casper

20 CENTER | All Sections’ Summer Mixer [photos] Gala Reception Invitation MCLE Spectacular SAVE THE DATE 2015 Sustaining Law Firms

27 STUDENTS LEARN THE REALITY OF LAW IN GJELL’S SUMMER PROGRAM | Andrew R. Gillin

30 PRO BONO IN CONTRA COSTA

32 ETHICS CORNER | by Carol M. Langford

34 CALENDAR

38 CLASSIFIEDS

THE FUTURE OF DISPUTE RESOLUTION IS HEREby S. Lucia Kanter St. Amour

UPPING OUR GAME: MINDFULNESS AND MEANING IN MEDIATIONby Barbara S. Bryant, Esq.

RESOLUTION OF HIGH CONFLICT DISPUTES by Ron Mullin

6

11

9

PROPOSED RULE CHANGES FOR THE DISCOVERY FACILITATOR PROGRAMby Margaret J. Grover

13

RECENT DEVELOPMENTS IN ARBITRATOR DISCLOSUREby Paul Dubow

15

A MEDIATOR’S DILEMMA: COMPETING INTERESTS IN THE SAME ROOMby Malcolm Sher

17

THE PERFECT MEDIATION by Hon. Richard J. Flier (Ret.)

24

SEPTEMBER 20154

W elcome to the 2015 Alternative Dispute Resolution edition of the Contra Costa Lawyer magazine. The ADR Section of our Bar Association consists of lawyers and re-

tired judges who litigate, mediate and arbitrate, as well as serve as special masters, early neutral evaluators and settlement neutrals for the courts in Contra Costa Coun-ty, and often in our neighboring counties.

Collectively, these dedicated individuals donate hun-dreds of hours of pro bono time and service to our legal community every year. I am extremely proud to serve the CCCBA and to represent these dedicated members as Chairperson of the ADR Section this year. Together, we share a common passion for helping litigants, litigators and the court by facilitating resolution of disputes.

This month’s Contra Costa Lawyer magazine features articles written by seven of our section members. Sev-eral of these articles will introduce you to some areas of the ADR practice field that you may not have encoun-tered or even considered.

In her article entitled, “The Future of Dispute Resolu-tion is Here,” Lucia Kanter St. Amour describes how mediation principles are being applied in some of our public schools using the Restorative Practices method.

Barbara Bryant’s article, “Upping Our Game: Mind-fulness and Meaning in Mediation,” discusses the ef-fects of stereotypes and biases in mediation and how a mediator can minimize those effects.

In his article, “Resolution of High Conflict Disputes,” Ron Mullin provides helpful pointers in moving emo-tionally charged situations to a mutually satisfactory resolution.

John Cavin

inside

Maggie Grover’s article looks at pending changes to the Contra Costa Superior Court Discovery Facilitator program, and Paul Dubow summarizes recent devel-opments in arbitrator disclosure, and the potential im-pact of failure to disclose relevant information.

“A Mediator’s Dilemma: Competing Interests in the Same Room,” written by Malcolm Sher, addresses the practical and ethical questions faced by a mediator when a litigant and her attorney are at odds.

I am also thrilled to have the Honorable Richard Flier (ret.) provide his perspective on “The Perfect Me-diation.”

We think you will enjoy reading about these updates on our practice and some of the lesser known corners of ADR world.

A little more about the ADR Section: In addition to regularly interacting with court staff and judges, the board has taken an active role in following the Cali-fornia Law Revision Commission’s two-year study of mediation confidentiality as the commission decides whether or not to propose legislation that would make certain exceptions to the mediation confidentiality pro-vided by California Evidence Code Section 1119. In May, our section’s annual Spring ADR Roundtable featured a presentation and discussion on the implication of pos-sible changes to mediation confidentiality.

The ADR Section’s annual calendar of events typically includes a Self-Represented Litigant Brown Bag seminar and our Fall Annual Lunch Meeting, which will be held on Friday October 16, 2015, featuring Steven G. Mehta, a well-known mediator, author and public speaker from Southern California as our guest speaker.

The section also actively participates in the annual CCCBA MCLE Spectacular in November. We invite ev-eryone interested in the realm of ADR to join us at our Fall luncheon and get to know your ADR section. s

John Cavin is a Shareholder with Hoge Fenton in Pleasanton. His practice focuses on litigation and mediation throughout Northern California. He currently is completing his second term on the CCCBA ADR Section Board and serves as its 2015 Chair-person.


of trial. Often, costs double or triple in a matter of days due to jury fees, expert witness costs, the expense of creating demonstrative evidence, etc.

This can lead to a situation of di-minishing returns: A verdict in a plaintiff’s favor could be equal to a settlement for considerably lesser sums months earlier due to the mere avoidance of trial costs.

Being on the other side of the bar, it is also easy to lose sight of what trials are like from the juror’s per-spective. One of the great American rites of passage, lamented along with trips to the DMV, is jury ser-vice. Even lawyers can relate to the annoyance of sifting through the mail and coming across a juror sum-mons.

Some of the complaints are war-ranted: No other civic duty has the potential to be so disruptive, requir-ing you to turn aside your daily obligations for days, weeks or even months at a time. Heck, these days you can even do most DMV tasks online, or at worst, make an ap-pointment.

Not so with jury duty. You can’t appear for jury duty by way of social media, follow the evidence in a live stream and tweet in your verdict.

But jury duty is also an extraor-dinary experience once the process begins. You can witness the trans-formation with most juries. During voir dire through opening state-ments, jurors shuffle in and out of the courtroom with annoyed ex-pressions.

As the evidence comes in, some-thing remarkable tends to happen:

president’s message

Nick Casper CCCBA Board President

As this issue of the Contra Costa Lawyer is devoted to Alternative Dispute Resolution, I thought I

would examine the natural end-point after one common form of ADR—mediation—fails: The jury trial.

For litigators, the jury trial is the most exalted and noble proceed-ing in the practice of law, marking the critical milestones and turning points that delineate our careers. It is also something that is to be avoid-ed, if at all possible.

The number one reason we work so hard to avoid trials is uncertain-ty. This is often a prominent touch-stone for mediators when they dis-cuss why a case should be settled: You never know what a jury is go-ing to do. Having tried a number of cases as lead counsel myself, and having my finger on the pulse of jury verdicts since I began practic-ing, I would heartily agree with this assessment.

Generally, juries “get it right,” finding for (or against) the side that has met (or not) its burden of proof. But sometimes juries get it wrong, based on a misapprehension of the evidence, failure to follow the law or hidden biases.

Jurors also can reach the right de-cision, but for the wrong reasons. I have spoken to a number of jury forepersons post-verdict, and the adage that jury decisions are like making sausage can be uncannily accurate.

The other obvious reason we strive to settle cases is the expense

Jurors become invested in the out-come. Suddenly, jurors are as thick as thieves in the hallways, laugh-ing, sharing personal histories and trading phone numbers. Like any intense experience within a small group, trials have a strong coalesc-ing effect.

The jury trial is rightfully the cor-nerstone of our judicial system—a brilliant conception millennia old in which average citizens decide critical issues that affect people’s lib-erties, rights or matters of great pub-lic import. But there is considerable downside for both litigators and lay people alike. ADR is also a brilliant contrivance that allows us to avoid the jury trial whenever possible. s

As an associate with Casper, Mead-ows, Schwartz & Cook since 2007, Nick Casper represents injured individuals in cases involving cat-astrophic injury, wrongful death, medical malpractice, employment discrimination/harassment and civil rights violations. Nick has been lead counsel in five civil jury trials.

The Jury Trial

SEPTEMBER 20156

O ne morning, when my youngest son was in the second grade, I was bark-ing at him to hurry up get-

ting dressed so we wouldn’t be late. I wasn’t particularly friendly about it.

My son became visibly upset and announced, “I feel nervous and anxious when you rush me to get dressed using a mean voice.” And then he drove it home, his face flushed with emotion and choking back tears: “And that’s my ‘I State-ment,’ Mommy!”

Two weeks earlier, teaching the Mediation Clinic at UC Hastings, I had been training law students—adults, mind you—on “I State-ments” and re-framing technique; they had not even heard of “I State-ments,” much less practiced them in real life.

My reptilian-brained 1970s Illi-nois-bred internal voice wanted

to retort, “I don’t care how you feel about it; just get it done!” But I didn’t (because even I have evolved be-yond the draconian Midwestern conflict approach of my youth). In-deed, I found myself feeling thor-oughly impressed—and schooled—by my son.

Instead, I offered a conciliatory smile and calmly inquired, “Where did you learn about ‘I Statements?’” He shrugged and answered, “In school.”

How does this conversation shed light on the future of mediation? Thirty years ago, few people were familiar with mediation. Today, al-though many laypeople and law-yers alike still cannot differentiate between mediation and arbitration (which are very different forms of ADR), we see mediation used more prominently as a mechanism for dispute resolution and litigation settlement.

by S. Lucia Kanter St. Amour

Becoming a full-time mediator is now an accepted career and me-diation certification courses are regularly offered by local bar associ-ations, community dispute resolu-tion groups and other dispute reso-lution organizations.

Clients now commonly demand an opportunity to mediate as a means of managing costs. In short, mediation has become mainstream.

In the future, we can expect that mediation methodology will not to be relegated exclusively to the pro-cess of legal conflict resolution, but will be incorporated into everyday life.

Based on the Restorative Prac-tices (RP) method now being taught in some public schools, including those in the San Francisco and Oak-land Unified School Districts, our children are learning conflict reso-lution techniques as early as kin-dergarten.

The Future of Dispute Resolution is Here


Remember when you were in middle school? Remember when someone got into a fight in the hall-way, cheated on a test or stole an-other student’s Sony Walkman from their backpack?

The response was swift and puni-tive: The offender was sent to deten-tion (at a minimum). No discussion, no excuses—no one cared how any-body felt about the situation. The of-fender had committed a transgres-sion of social behavior and that was that.

Moreover, when he/she got home later, the parents grounded the of-fender from watching “Remington Steele” for three weeks. Thus, he/she was shamed both publicly and pri-vately. The offender had done a bad thing, and perhaps was even told that he/she was a bad person.

Well, times have changed and ed-ucation policy and pedagogy have changed along with it.

When you enter the upper yard at Grattan Elementary School in the

Cole Valley neighborhood of San Francisco, you are greeted by the following poster at the building en-trance:

“When responding to conflict, a restorative approach consists in ask-ing the following key questions:

1. What happened, and what were you thinking at the time?

2. What have you thought about since?

3. Who has been affected by what happened and how?

4. What about this has been the hardest for you?

5. What do you think needs to be done to make things as right as possible?”

Jean Robertson, a veteran teacher and long-time principal in the San Francisco Unified School District, now serving at the helm of Glen Park Elementary, describes RP as “a gift.”

It teaches students “the skills necessary for de-escalation and re-

pairing harm that may have been caused by their own actions,” and still includes “a healthy place for consequences.”

Robertson opined that “the hard-est part is reshaping belief systems and practices of our adults who tend to resort back to ‘old school’ practic-es [of blaming and shaming].”

In response to parent questions about discipline during a group orientation, A.P. Giannini Middle School Vice Principal Tai Schoeman briefly explained the RP approach.

He revealed that if a student steals an iPod from another student’s backpack, RP is more effective at molding desirable behavior and dis-couraging repeat transgressions; RP invites everyone to slow down and examine the problem, as opposed to slapping a superficial and tempo-rary punishment on the student.

While such “slowing down and examining” may seem like more work up front, Schoeman noted that it pays in dividends—not just with the individuals involved in an iso-lated conflict, but in “a culture” that arises through regular use of RP.

This culture also promotes a sense of empowerment (a cornerstone of mediation, which we media-tors call “self determination”) that students are competent to resolve their own problems without neces-sarily requiring an authority figure to dictate terms.

Ted Wachtel at the International Institute for Restorative Practices, sums up the fundamental prem-ise of RP: “People are happier, more cooperative and productive, and more likely to make positive changes when those in authority do things WITH them, rather than TO them or FOR them.”

The teaching of RP in schools cre-ates interesting questions for me-diators: If our children are learning sophisticated and nuanced com-munication and conflict resolu-tion skills during their formative years in school, will we even need

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mediators in the future? Is our job security at risk? Or will mediation skills become so conventional that the profession will expand?

In any event, if these public school programs provide a glimpse of the future, mediation could be seamlessly woven into the tapestry of everyday social and professional interactions because our children are learning the language and the skills of mediation as part of their fundamental education. s

S. Lucia Kanter St. Amour serves on the CCCBA ADR Board, is Prin-cipal of Pactum Factum Dispute Resolution based in Walnut Creek and is Founder and Executive Di-rector of the nonprofit Autism family support organization, Spec-trum Strategies.

The Future of Dispute Resolution

cont. from page 7

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Upping Our Game:

by Barbara S. Bryant, Esq.

W hether you are a rela-tively new mediator or have been mediat-ing for decades, you

may ask yourself on occasion why a mediation didn’t settle, or even when it did, why one or more sides was unhappy with the result even when it made economic sense for all.

From this author’s own experi-ence and that of various colleagues, it seems evident we all can improve our mediation skills and results by bringing greater awareness to our inner resources, and greater atten-tion to the various interpretations assigned by participants and our-selves to the statements and actions leading to an underlying conflict.

Implicit Bias

One of the defining characteris-tics of mediation is that the media-tor is an impartial person to all par-ticipants (or “multi-partial,” as it is sometimes stated). Most of us take this role seriously and apply it to the best of our ability, putting aside biases we know we have, such as those based on our politics or per-sonal histories.

At the same time, we are learning more about biases we may have but not know about. Not only are they unconscious, but often antitheti-cal to what we consciously believe. These “implicit” biases can unknow-ingly impact our mediation filters, for example, in who we feel is more credible, with whom we most em-

pathize, and/or how we measure the personal or professional harm a plaintiff has experienced.

These implicit biases may be based on protected categories, such as sex, race, gender, religion, disabil-ity or age. They also may be based on other criteria, such as a person’s physical appearance, speaking style or emotional affect.

Happily, there are steps we can take to minimize the impact of any such biases on our mediation pro-cess and outcome. One is to famil-iarize ourselves with the online Implicit Association Test created by researchers at Harvard Univer-sity, which focuses on uncovering and measuring our hidden biases, including those based on race, sex, religion, sexual orientation, weight, age, disability and Arab-Muslim status. (www.implicit.harvard.edu).

Another useful step is to read more about prejudice—how we learn it and what we can do to minimize it. Many resources are compiled by UnderstandingPrejudice.org and are available at www.understanding-prejudice.org.

Emotions in Mediation

There was a tongue-in-cheek say-ing in the 1970s women’s move-ment that “When women feel hurt, they cry; when men feel hurt, they start wars.” Stereotypical and hy-perbolic to be sure, but thought-pro-voking as well.

All too often, stereotyped sex/

gender roles are reinforced—even today. Boys and men still are taught not to cry or show what are consid-ered “vulnerable” emotions. Anger and pride are the more accepted forms. Crying is still considered more appropriate for women, with anger still more criticized.

As mediators, to what extent have we internalized this double stan-dard? To what extent are we com-fortable with the emotions of others in a mediation setting? Are we more comfortable with others’ anger and indignation than with their tears or other expressions of sadness?

Or are we comfortable with tears but immobilized by anger? How comfortable/aware are we with our own emotions in mediations? Do we suppress them to remain neutral or to feel in charge? Or are we com-fortable feeling or being perceived as feeling empathy with the anger or sadness being expressed by oth-ers? Can we use it as a way of vali-dating the work participants have done? Why or why not?

There are no correct answers to these questions. But as mediators, we need to be mindful of not only the ideas and emotions of the par-ticipants, but also how we are react-ing to them. Such awareness can help us acknowledge and address the needs and interests of the par-ties, as well as reduce the chances that our implicit biases are interfer-ing with our effectiveness in under-standing and supporting the parties in ways they need.

Mindfulness and Meaning in Mediation

SEPTEMBER 201510

tive and react in kind. Not all, but many conflicts arise from a similar dynamic and thus take on a life of their own (including at times pre-mediation litigation be-tween opposing counsel).

Mediation then involves learning about each side’s intentions and reactions of the other, reducing resent-ments by translating the divergent meanings that have arisen back to each side, and finding mutually agree-able terms for resolution.

Ultimately, a sensitivity to implicit bias, an aware-ness of our own feelings, emotions and judgments, and a facility for learning and conveying different meanings among the parties, serve us well in defusing hostility, increasing our rate of settlement and enhancing the sat-isfaction level of all those for whom we mediate. s

Barbara S. Bryant is a full-time mediator and media-tor coach, focusing on employment law and discrimi-nation/harassment in employment, housing, educa-tional and business settings. She teaches Sexual and Gender Harassment Law at UC Berkeley Law, and is an Executive Committee Member of the State Bar’s Labor & Employment Section, and Board Member of the CCCBA ADR Section.

Upping Our Game,

cont. from page 9

When we are clear about our feelings, and their source, we can be more skillful in generating questions and ideas for participants, and for moving beyond a po-tential impasse.

For example, when we are told by a party representa-tive, “It’s just a business decision,” do we believe that is so and talk only about numbers? Or do we sense deeper personal feelings going on within the representative, and find skillful ways to work with these feelings and move the parties not only beyond impasse, but to a more satisfying result for all?

To some extent, a fear of emotions, or of being unable to handle them, is at the heart of the current trend to avoid a substantive joint session at the beginning of a mediation. Often there is a concern that each side will just blame the other and cause more resentment. While this is a valid concern, and does happen at times, a medi-ator or attorney well-trained in working with negative emotions can turn these sessions into ones of greater understanding and commitment to forging a positive outcome.

Indeed, some forms of mediation, including those involving business or employment matters, take place almost exclusively within the same room, with the parties talking in front of one another with guided mediator intervention. But even without a substantive joint session, the mediator’s ability to acknowl-edge and work with negative feel-ings on both sides can bridge the most intractable dispute and get it resolved.

Overcoming the

Intent-Impact Duality

Many of the conflicts we mediate arise from a simple intent-impact duality. In essence, this duality aris-es when we measure an act of ours by our intention, and the act of an-other by its impact on us. If our in-tent is good, we expect our action to be received as such, and may resent it when it isn’t.

Conversely, the act of another may be motivated by a good inten-tion, yet it feels negative to us when received, so we assume a bad mo-

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W hat is conflict? It seems like a simple term. Most of us know it when we see it. Just

observing conflict can raise our blood pressure, make us sweat and raise our heart rates.

But an analysis and definition of the term is helpful to set the stage for a common understanding of its components and to examine some processes that may be available to diffuse conflict, so that the parties can move toward a resolution.

Conflict can be defined in many ways, but for our purposes of explor-ing the types of disputes that come before a mediator, the definition propounded by Dean Pruitt and Jef-frey Rubin, social scientists who fo-cused on conflict resolution, may be the most helpful.

They found that “conflict” means “perceived divergence of interest, or a belief that the parties’ current aspirations cannot be achieved si-multaneously.”1 “High” conflict is an exacerbated form of conflict usu-ally driven by high levels of anger or other non-cooperative types of behavior that include avoidance, competitiveness, antagonism and coercion.

by Ron Mullin

Many times, mediators are brought into high conflict situa-tions involving personal relation-ships, such as family law matters or estate administration after the par-ents have died.

It is vitally important for media-tors to know how to handle high conflict situations if they are going to be able to successfully facilitate a resolution that ends the conflict and allows the disputants to move forward with the rest of their lives.

Cooperative conflict resolution strategies work only when both sides share a willingness to pursue mutually favorable solutions. In other words, if a disputant is look-ing only to win or to punish, selfish-ness will likely be met with selfish-ness, force will be met with more force, avoidance of the conflict all together or even just walking away and surrendering.2

Often it is necessary for very an-gry disputants to “vent” so that the mediator can listen and attempt to go behind the anger and find out what that dis-putants’ concerns or interests are. As Fisher and Ury pointed out in their book, “Getting to Yes,” “Your posit ion

is something that you have decid-ed upon. Your interests are what caused you to decide.”3

It is always better for “heavy venting,” involving heated accusa-tions and insults, to take place out-side of earshot of the adversary. To allow otherwise might poison the relationship of the parties irremedi-ably. Providing a safe opportunity to vent is one of the roles of the pri-vate caucus.

Initially, when parties present at a mediation, they will have a posi-tion. Sometimes we call these de-mands and offers or counter-offers. But only after the mediator has been able to bond with the individ-ual parties will they learn the con-cerns or interests that are behind those positions.

Inability to tease out those con-cerns will lead to the inevitable tit-for-tat positional negotiation that almost always ends in impasse.

A mediator might use active lis-tening to echo back to an angry

party what the mediator may have heard the party say. This

helps the party to grasp fully that the mediator really

Resolution of High Conflict Disputes

SEPTEMBER 201512

High Conflict Disputes

cont. from page 11

does understand where the party is coming from. A mediator might also use reframing to summarize what she or he is hearing from the party, including an assessment of how that made the party feel.

The goal is the same, to diffuse intense emotions including anger, betrayal or antagonism so that the party will be able to rationalize about what is really important to them—their interests, their con-cerns. Asking open-ended questions following reframing can also be helpful. The goal is to redirect dis-putants from conflict and distress to relief and resolution.

Danger lies in the mediator not acknowledging those intense feel-ings or somehow making the party feel that it is wrong that they have those feelings. This puts the media-tor in opposition to the party and potentially affects the neutrality of the mediator. When that happens, whatever the mediator asks or hints at may be subject to reactive de-valuation because the party may perceive that the mediator doesn’t agree with it, has taken the position of the other side or has judged it to be “out of line” or just simply wrong.

As a result of that assessment, anything that the mediator says will be devalued in reaction to those feelings.

Many attorneys hate emotional outbursts, and are very uncomfort-able with their clients losing con-trol. As a mediator, one does not mind the anger so long as it does not lead to physical violence. Some-times we just have to recognize that people have to cry out with anger to tell everyone, and most pointedly the mediator, “Hey, listen to me! Nobody understands the reason why I feel like I do!”

This is when the skilled media-tor will use different tools to make sure that the person really under-

stands and feels that she or he has been heard. And sometimes, it is as simple as that—just an acknowl-edgement that someone hears the participant and understands what is of importance to her or him.

So, what then is a resolution of a conflict? Looking behind the posi-tions, there must be recognition by all parties of the concerns or in-terests of the other. Sometimes it is wise to request that a party try and put itself into the shoes of the oth-er party in an effort to understand what that other party’s concerns might be.

Only when such an understand-ing is realized can there be an explo-ration of the underlying concerns, followed by choice and implemen-tation of a plan of action.

The role of the mediator in high conflict dispute resolution is essen-tially always the same: (1) obtain an expression of initial positions; (2) help the parties explore the un-

derlying concerns; and (3) coach the parties to negotiate an optimal win-win solution and launch effective action.

Along the way, it is essential to help people adopt a more benign perspective that will allow them to make choices in their own self-interest. s

Ron Mullin, J.D., is a Past Presi-dent of the CCCBA and the founder of the ADR Section. He is an elder law attorney, arbitrator and media-tor, with a practice in Concord.

1 Dean G. Pruitt & Jeffrey Z. Rubin, “Social Conflict: Escalation, Stalemate, and Settle-ment,” 4 (1986).

2 Susan M. Heitler, “From Conflict to Reso-lution: Skills and Strategies for Individual, Couple, and Family Therapy” (1990).

3 Roger Fisher and William Ury, “Getting to Yes: Negotiating Agreement Without Giving in” (1983).

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Proposed Rule Changes for theDiscovery Facilitator Program

B efore filing a discovery mo-tion, litigants in the Contra Costa Superior Court are re-quired to participate in the

Discovery Facilitator Program. This program has been in effect since early 2013.

According to the Honorable Ste-ven K. Austin of the Contra Costa Superior Court, the program has “saved our bacon.” As the result of budget cuts, court staffing has been severely reduced, and Contra Costa no longer has a Discovery Commis-sioner.

To respond to concerns raised by litigants and discovery facilitators, many changes have been proposed to Local Rules governing the Dis-covery Facilitator Program. These changes are designed to streamline the process and alleviate the bur-den on the discovery facilitators. Proposed changes include:

• Clarification that certain matters are exempt from the Discovery Facilitator Program, for example:

- Discovery disputes in which there has been no response to dis-covery requests.

- Cases within 60 days of trial.

- Motions to compel a third-par-ty’s refusal to comply with a sub-poena.

- Disputes specifically exempted by the trial judge.

• Specifying that a discovery facili-tator is to handle only one assign-ment per case without compen-sation. Upon agreement of the parties, the facilitator may accept

by Margaret J. Grover

subsequent assignments in a case, in which case he or she will be paid for his or her time. If the par-ties do not agree, subsequent re-quests in the case will be assigned to different discovery facilitators.

• Verifying that a discovery facilita-tor is not expected to spend more than four hours on a case. If the discovery facilitator estimates that a case may take more than four hours, he or she may decline the case by sending a completed Notice of Termination of Appoint-ment of Discovery Facilitator form to the court’s Alternative Dispute Resolution Office, stating that the matter is expected to take longer than four hours. When that oc-curs, the matter will be set for an Order to Show Cause hearing or a Discovery Conference within 60 days. The court will preview the issues with the parties, give guid-ance on alternatives, encourage meaningful meet-and-confer ses-sions and discussion of the need to appoint a discovery referee. The

court may also set a date for hear-ing on a discovery motion, or im-pose issue or monetary sanctions, as appropriate.

• Expediting the process for reject-ing a discovery facilitator. Rejec-tions must now be made within 10 calendar days, as opposed to 10 court days. If the discovery facili-tator is rejected, a second discov-ery facilitator will be appointed. Objections to the second or suc-ceeding discovery facilitators may only be made by ex parte ap-plication setting forth good cause for the Objection.

• Authorizing the discovery facili-tator to extend the 30-day win-dow in which to conduct the hearing, if there is good cause for the extension.

• Specifying that discovery facilita-tor hearings may be conducted by telephone or video conference.

• Allowing the parties to bring an ex parte application to exempt the matter from the program.

According to David Miller, of Miller Mediation, and one of the at-torneys who helped draft both the original rules for the program and the proposed revisions, many of the rules respond to concerns that the discovery facilitator process was excessively time consuming. If dis-covery disputes did not resolve with the assistance of a discovery facilita-tor, the parties had often waited a month or two before being allowed to file a motion.

The volunteer discovery facilita-tors were, in some cases, being asked

SEPTEMBER 201514

Discovery Facilitator Program,

cont. from page 13

to take the role of a discovery refer-ee, spending hours of time without compensation. The proposed rule changes set up a process by which the court can be notified of complex disputes and appoint a discovery referee, if one is warranted.

Jay Chafetz, who was instrumen-tal in crafting both the original Dis-covery Facilitator Program rules and the proposed amendments, commented that one anticipated re-sult of the changes is ensuring that not too much time is burned at the front end of resolving a discovery dispute.

Chafetz, who is retired from pri-vate practice and now works for the Contra Costa Superior Court, also noted that some types of cases do not belong in the Discovery Facili-tator Program. For example, there is not adequate time to go through the process when the case is within 60 days of trial. Where there has been no response to discovery, there is little likelihood that a discovery facilitator will add value; the party propounding the discovery wants answers or an order to compel.

If the proposed changes are ad-opted, they will become effective on January 1, 2016.

Judge Austin says the Discovery Facilitator Program is “working very well.” In his opinion, it pro-vides a useful opportunity for the parties to sit down with a third par-ty and evaluate the dispute; many discovery disputes have been re-solved through participating in the program.

What does the court do with the discovery facilitator’s opinions, in those rare cases when the dispute is not resolved? The opinion must be attached to the moving papers. Judge Austin noted that he found it useful to see how a third party

analyzed the dispute. The judges “always look at and consider the opinion, but make independent de-terminations in each case.”

Judge Austin emphasized that the Contra Costa Superior Court judges recognize and appreciate the time and effort contributed by the volun-teer discovery facilitators.

For more information on the Dis-covery Facilitator Program, visit the court’s website at www.cc-courts.org. s

Maggie Grover is an employment lawyer with the Oakland firm of Wendel, Rosen, Black & Dean, LLP. In her over 30 years of practice, she has represented employers and employees and served as a media-tor, discovery referee and discov-ery facilitator. She is on the board for both the ADR and Employment Law sections of the Contra Costa County Bar Association.

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Recent Developments in Arbitrator Disclosureby Paul Dubow

I n the olden days (the 20th century), the main way by which an attorney could glean information about a potential arbitrator was through the dis-closures made by the arbitrator or by contacting

colleagues who may have known or tried cases before the arbitrator. But today, thanks to the magic of Internet searches, attorneys can unearth undisclosed, lurking bi-ases.

But what happens if the attorney chooses to accept an arbitrator, relying on the arbitrator’s disclosures or information provided by colleagues and then, after the arbitrator rules for the other side, finds undisclosed facts about the arbitrator that suggest a possible bias?

Given that most information on the Internet is public and the undisclosed facts could have been unearthed be-fore the arbitration, is the attorney stuck with the award and the possibility of a malpractice claim by the client, or can the at-torney move to vacate the award? For the moment, the answer is that vacatur is still available.

Mt. Holyoke Homes, L.P. v. Jef-fer Mangels Butler & Mitchell, LLP, 219 Cal. App. 4th 1299 (2013), arose following arbitration of a malprac-tice claim against the law firm that had represented the claimants in a real estate transaction.

The parties chose an arbitrator who was a retired judge with an impeccable reputation. The selected arbitrator provid-ed extensive disclosures about his prior contacts with members of the firms that represented both parties in the matter. However, after the arbitrator ruled against the claimants and awarded substantial attorney’s fees to the law firm, the attorney for the claimants conducted an Internet search and discovered a 10-year-old resume of the arbitrator that listed the named partner of the re-spondent law firm as a reference.

The claimants thereupon moved to vacate the award. The trial court denied the motion and the claimants ap-

pealed. The respondent law firm argued that the claim-ants’ constructive knowledge of the resume barred them from raising it to show arbitrator bias. The Court of Ap-peal determined that the arbitrator was not biased in favor of or against any party in the arbitration. Despite this conclusion, the court reversed because a reason-able person aware of the facts could reasonably doubt whether the arbitrator could be impartial.

The court stated, “[A] party to an arbitration is not required to investigate a proposed neutral arbitrator in order to discover information, even public informa-tion, that the arbitrator is required to disclose. Instead, the obligation rests on the arbitrator to timely make the required disclosure. The fact that the information is readily discoverable neither relieves an arbitrator of the duty to disclose nor precludes vacating the award on the nondisclosure.”1

Does the Mt. Holyoke decision allow parties to an arbitration to obtain allegedly disqualifying information about the arbitrator, proceed with the arbitration and come forward with the informa-tion only if disappointed by the arbitrator’s award? Probably not.

In Mt. Holyoke, there was no evidence that the claimants had discovered the undisclosed infor-mation before selecting the arbi-trator. If a party was aware of the information before the arbitrator’s

appointment, then the party is estopped from asserting bias after the decision.2

In Johnson v. Gruma Corp., 614 F. 3d 1062 (9th Cir. 2010), the court declined to vacate a decision based upon undisclosed information that the attorney had known more than one year before the dispute was decided. The 9th Circuit noted that the delayed disclosure suggested two things: Either the attorney did not believe the appli-cable standards required disclosure of the information, or the attorney may have held his objection in reserve,

SEPTEMBER 201516

as a hedge against an unfavorable arbitration decision.

Other rulings chip away at Mt. Holyoke by holding that a party who had information that should have led to further inquiry waived the right to object to an arbitrator’s service by not pursuing the inquiry.

In Dornbirer v. Kaiser Founda-tion Health Plan, Inc., 166 Cal. App. 4th 831, 842-44 (2008), the arbitrator disclosed at the outset that he had presided over 15 matters involving Kaiser’s counsel and “previously presided over eleven other matters involving Kaiser.”

However, he failed to provide cer-tain information about these mat-ters that was required by Code of Civil Procedure Section 1281.9. Af-ter the arbitrator ruled against the claimant, she moved to vacate the award because of the arbitrator’s failure to provide the required in-formation and because she learned that he had presided over 26 Kaiser arbitrations, not eleven.

The motion to vacate was denied, because the disclosure provided suf-ficient information for the claimant either to request that the arbitra-tor provide additional information about the prior arbitrations or to seek disqualification based on the information provided.

In United Health Centers of the San Joaquin Valley, Inc. v. Supe-rior Court, 229 Cal.App.3d 63, 83-85 (2014), the claimant’s counsel agreed to the service of an arbitrator after the respondent’s counsel dis-closed that he had used the arbitra-tor in several prior arbitrations.

The claimant’s counsel never re-ceived disclosures from the arbitra-tor and claimed that he presumed the arbitrator had nothing to dis-close. The arbitrator had made dis-closures, but the disclosure letter did not comply with Section 1281.9,

Arbitrator Disclosure,

cont. from page 15

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because it was sent only to the re-spondent’s counsel.

The evidence showed that the claimant’s counsel had received the disclosure letter from the respon-dent’s counsel before the arbitrator was selected. After the arbitrator ruled for the respondent, the trial court granted the claimant’s motion to vacate the award based on the ar-bitrator’s failure to comply with Sec-tion 1281.9.

The Court of Appeal reversed, holding that, while an arbitrator is bound to disclose all details re-quired under Section 1281.9, a party who knows a disclosure is defective cannot passively reserve the issue for consideration after the arbitra-tion has concluded.

At least one decision reached an opposite conclusion about post-award Internet searches than the court did in Mt. Holyoke, although the ruling is arguably dicta.3 In that action, after losing, the claimant searched the Internet and discov-ered that the arbitrator was of Ger-man Jewish heritage, had lost fam-ily members in the Holocaust and was a member of the 1939 Club, an organization dedicated to prevent-ing future holocausts.

The claimant’s father had served in the German army during World War II and his wife’s father had served in the SS, a major paramili-tary organization under the Nazi Party. The claimant moved to va-cate the award, arguing that the arbitrator had “punished” him be-cause of his family background.

The motion was denied, as there was no evidence the arbitrator knew of the claimant’s family back-ground or had a bias against Ger-mans. The Appellate Court added that, if the claimant was concerned about the cultural and religious background of the arbitrator, he should have “done his Googling pri-or to the arbitration, rather than sit back and wait and only raise the is-sue when an unfavorable outcome resulted.”4

The bottom line is that while counsel may successfully vacate an arbitration award after a post-hear-ing Internet search reveals negative undisclosed information about the arbitrator, the better practice would be to conduct that search before the arbitration. The best prospect faced by a party who successfully moves to vacate an award based on infor-mation gleaned in a post-award In-ternet search is to try the case again.

That party would have been far better off doing a pre-hearing Inter-net search and trying the case just once before an arbitrator who did not have an appearance of bias. s

Paul Dubow is an arbitrator and mediator who specializes in securi-ties, employment and commercial law matters. He is a past president of The Mediation Society of San Francisco and the California Dis-pute Resolution Council and is a former co-chair of the Arbitration Committees of the ABA Dispute Resolution and Litigation sections. Paul is also a member of the board of directors of the CCCBA ADR Sec-tion.

1 Id. at . 1313.

2 Cobler v. Stanley Barber Southard Brown & Associates, 217 Cal. App. 3d 518, 526 (1990).

3 Rebmann v. Rohde, 196 Cal. App. 4th 1283 (2011).

4 Id. at 1292-93.


A Mediator’s Dilemma: Competing Interests

in the Same Roomby Malcolm Sher

I t’s one thing, when despite being prepared, reading everything that is submitted, listening attentively, exhibiting patience, engendering trust and coming up with a smorgasbord of options, a mediator’s ef-

forts are unsuccessful in bringing about a settlement. It’s quite another where the case won’t settle and the im-passe is not caused by the parties, themselves, who are only too keen to settle and put the whole unfortunate experience behind them.

So, you might ask, who or what gets in the way? The answer is, one “who” and two “whats.” In many types of cases, the “who” is the plaintiff’s lawyer and the two “whats” are the attorney’s fees and a fee-shifting statute or contract that provides for recovery of fees. These barri-ers to resolution can arise in cases involving civil rights, consumer protection, employment, landlord-tenant dis-putes and breach of contract, to name a few.

Take for example, the plaintiff who had purchased a used “muscle car” from a dealership. The CARFAX alleg-edly stated that the vehicle had never been involved in an accident. When damage was found, the plaintiff sued under the Consumer Legal Remedies Act, Civil Code Sec-tion 1750 et seq., and the Consumer Warranty Protection Act, Civil Code Section 1790 et seq.

Both of these acts include fee-shifting provisions, where, among other remedies, a prevailing plaintiff “shall” recover reasonable attorney fees.

The mediation seemed to be progressing nicely. As part of a mediated resolution, the dealership agreed to take back the car, re-purchase the plaintiff’s loan and

pay something towards his attor-ney’s fees and costs. The plaintiff and dealership were ready to close the deal!

Indeed, the plaintiff was particu-larly motivated, having driven sev-eral hundred miles to attend the me-diation, and incurred travel, hotel and food expenses. The plaintiff rec-ognized that these costs would mul-tiply significantly if the case went to trial in a couple of months. Further, he was facing the costs of expensive expert depositions that remained to be taken.

So, what could be the problem? The plaintiff’s attorney sought over $100,000 in legal fees and over $7,000 in deposition costs and expert fees prosecuting the case, and wasn’t about to give up any of it!

In our example, when his attor-ney went to make a phone call, the plaintiff started crying. He could not afford to continue with the case, much less take it to trial. The plaintiff badly wanted, indeed needed, to set-tle on the terms offered at mediation.

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The litigation stress and expenses were jeopardizing both his job and his marriage. Referring to his attor-ney as a “greedy [person] who thinks it’s her case,” the plaintiff begged the mediator to “make” the attorney accept the offer, even though there would be little paid towards the attorney’s fees. As in most contingency fee agreements, the plaintiff was responsible for costs, but not for fees, if he did not recover at trial.

What an ethical dilemma for a mediator! The media-tor is not able to give legal advice, nor should a media-tor cause a rift between an attorney and her client. Does Rule 2-100 of the California Rules of Professional Con-duct, governing communication with a represented party, apply? Probably not, as the mediator is not acting as an attorney representing another client. Rule 2-100 would certainly not bar the communication if the me-diator were not an attorney.

The Model Standards of Conduct for Mediators pro-vide some guidance, as they require mediations to be conducted based on the principle of party self-determi-nation. In this case, the plaintiff desperately wanted res-olution. ABA Model Rule of Professional Conduct 1.2, al-though not applicable in California, also provides good guidance in requiring an attorney to “abide by a client’s decisions concerning objectives of representation.”

With this guidance in mind, the mediator may ask to speak privately with the plaintiff’s counsel, with the plaintiff’s knowledge and consent. The conversation should be tactful, and may include an explanation to counsel that the client is desperate to settle the case and may believe that the lawyer does not fully understand the client’s concerns.

The mediator may discuss whether there is a conflict between the lawyer and her client. Or are there external pressures that will result in the client making a poor wit-ness at trial? In this setting, it may be useful to convey

information provided by the defendant or defense coun-sel about the plaintiff—information not revealed di-rectly to the plaintiff, to avoid emotional reactions—but which the attorney may find useful. Ask the attorney to assess the necessary future investment of the attorney’s time and money, the risks associated with going to trial and the risks associated with making a fee application.

In our example, the mediator could compare the $25,000 paid for the muscle car with the attorney’s fees. Defense counsel would almost certainly oppose a re-quest for fees and costs totaling more than five times the amount at issue on the grounds that it is not “rea-sonable.” In most cases, attorneys on a contingency fee will recognize that proceeding to trial carries risks, even when a client is eager to try the case, but perhaps more so when the client is reluctant to try the case.

Sometimes the divergent interests between a plaintiff and counsel cause the plaintiff to reject a settlement of-fered at mediation that, at least objectively, appears to be in the plaintiff’s best interests. Especially in contingency fee cases, where the plaintiff has no real “skin in the game,” a plaintiff will sometimes attempt to force the at-torney to trial, even where the offer is fair, the likelihood of prevailing is uncertain, and it may even be too late for counsel to withdraw, because to do so would arguably “prejudice” the plaintiff’s case and counsel would lose the ability to recover a contingency fee.

In these circumstances, the most a mediator might be able to do is reiterate the risks of going to trial and emphasize the “bird in the hand” argument. Or dem-onstrate that, unless the plaintiff wins, recovering an amount, which, after deducting contingency fees and costs, is way above the amount, offered at mediation, the plaintiff might never be fully compensated. Then, men-tion the time-value of money now, the plaintiff’s time in court, away from work and family, the emotional costs or other non-quantifiable items.

Divisions between client and counsel can ruin the prospect of reaching a reasonable resolution. Media-tors who are sensitive to the internal relationships, and

use a variety of tools to address the situation, can overcome the hurdles and allow the parties and counsel to reach an acceptable, and amicable, resolution. s

Malcolm Sher is a full-time media-tor in the Bay Area and Chair of the State Bar of California’s Executive Committee on Mandatory Fee Arbi-tration. See www.sher4mediatedso-lutions.com.

A Mediator’s Dilemma,

cont. from page 17

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The Perfect Mediationby Hon. Richard J. Flier (Ret.)

W hat makes a perfect me-diation? What pieces, when cobbled togeth-er, give the parties

the best opportunity to settle their dispute, and even if unsuccessful, will give them the most informed perspective of the litigation process? In this author’s view, below are the important parts of this process.

1. Pre-Mediation Preparation

Starting at the beginning, both sides prepare, exchange, and deliver briefs at least a week before media-tion. The attorneys understand that mediation is their opportunity to communicate the salient facts and law both to the mediator and to op-posing parties, attorneys and claims adjustors. The brief is more “journal-

ism” than written advocacy; its tone is professional, never condescend-ing.

The brief contains a history of set-tlement discussions and all parties’ most recent settlement positions. The ideal brief educates, rather than advocates, and provides an infor-mation bridge to assist settlement.

Client preparation is the next critical segment of pre-mediation preparation. Counsel may need to encourage an attitude adjustment in their clients. Clients often think their attorneys are warriors, fight-ing to vindicate their position. In the settlement process, parties must honestly identify the goals of litiga-tion (usually paying or receiving money), the attendant cost and time of full blown litigation (including

possible appeals) and the net result of settlement versus litigation.

The attorney may need to dispel the common feeling that newspa-per accounts, television shows and cultural gossip are an accurate mea-sure of a case. If sensitively done, the client will understand that me-diation provides an opportunity to gain immediate results without the risks and costs of trial. Hopefully, this can be achieved without the client losing confidence in the war-rior’s willingness to fight!

Another important part of the pre-mediation preparation is a con-ference with the mediator, which is often a one-on-one with each attorney after briefs have been ex-changed. The mediator can use this conversation to identify efficient and productive ways to organize the mediation and to seek addition-al briefing regarding special issues or anticipated problems.

Attorneys are often most comfort-able with the “settlement confer-ence model” in which the parties stay in private caucuses, while the mediator moves to communicate offers and develop consensus. How-ever, joint sessions may be more ef-fective in certain types of cases.

For example, in personal in-jury cases, a joint session gives the


claims adjustor a firsthand oppor-tunity to evaluate the plaintiff. This has proved invaluable in obtain-ing better results for the parties. The plaintiff becomes a real person rath-er than a name in a report.

The claims adjustor can person-ally evaluate the plaintiff as a wit-ness. The claims adjustor becomes the face of the insurer. In some cas-es, the claims adjustor is able to dif-fuse feelings of outrage, frustration or vindictiveness by heartfelt com-ments of empathy, etc.

A joint session may also be fruit-ful in resolving family or neigh-borhood disputes, probate/trust situations or adjoining landowner problems. Clients may need to vent

and, if the dispute is based upon a factual misunderstanding, joint ses-sions can provide clarity.

Pre-mediation conferences help the mediator and attorneys evalu-ate options for structuring the day. In the perfect mediation, no tech-nique should be considered off lim-its.

2. The Mediator’s Opening

Comments

The perfect mediation begins with the mediator setting the tone. This generally involves discuss-ing the process of mediation, self-determination, confidentiality, the

difference between mediation and trial, rules of decorum, the need for patience with the process, the goal of understanding the opponent’s view, and ultimately the need to make a business decision that will resolve the case.

Not to sound trite, but this is tan-tamount to an operatic overture. It prepares people for the process, keeps them engaged through the middle exchanges and is a water-shed that can be tapped to close negotiations. Most experienced at-torneys understand its significance; however, inexperienced or naive counsel may unwittingly under-mine this important process by in-attention or conduct.

For example, attorneys often tap away on laptops, text on cellphones or display disinterest or ennui. One attorney even walked out of the opening meeting entirely! Clients take cues from their lawyers. One can almost hear them thinking, “Well, if this isn’t important to my lawyer, I must not worry about it.”

In the perfect mediation, every-one understands that the mediator’s opening remarks can help attitudes shift from advocacy to negotiation.

3. The Dance

The negotiation or “Dance” is the heart of the mediation process. In most civil cases, the major topic is

money; however, the resolution can involve terms, future projects or restating contract conditions.

The underlying philosophy is quite simple. A plaintiff wants to receive the maximum recovery possible: “I don’t want to leave any-thing on the table.” A defendant (or carrier), wants to pay no more than is reasonably necessary.

The Dance begins with the plain-tiff proposing an opening offer. This typically should be in the high, rea-sonable range for the case. If it is too high, the defense will balk and won’t truly engage. If it’s too low, the plaintiff may be unable to maxi-mize the settlement amount.

For example, if the likely jury ver-dict on a case would never exceed $50,000, it’s counter-productive to open with a $300,000 offer. Simi-larly, if one hopes to settle in the $50,000 range, one shouldn’t open with $55,000.

The defense will then provide a counter offer. This will be in the low range. In the simplest negotia-tion, the initial moves establish the settlement range. The parties often look toward the midpoint and ad-just their responses to raise or lower that midpoint.

During the Dance, many tools will be used to further the process. Some tools are analytical, some are emotional, some add new terms that may be at the heart of the dis-pute. Obviously, the only limit to these techniques is the participants’ imagination. The important thing is to keep moving, even if the steps are small, and to have patience with the process and the mediator.

In the perfect mediation, the par-ties reach a point where splitting the difference seems appropriate to everyone. If this does not hap-pen, and the parties have sincerely reached their respective ends, the parties may ask the mediator to make a settlement proposal.

This is usually an end-of-session technique. The mediator’s proposal

SEPTEMBER 201526

is communicated to both sides separately. If both sides accept the proposal, there is a settlement. If any party does not accept the proposal, that party will not know whether the other parties accepted the proposal. This way, no party is forced to give up the last communicated position unless the case will settle.

In the perfect mediation, the mediator relies upon the participants’ good faith. When this reliance is misplaced, it truly undermines the process. For example, if a party represents that a certain amount will resolve the case, declining that offer when it is presented is the height of dishonesty and gamesmanship.

Another common problem is negative attitudes. Early on, it is rarely productive to report that, “We are leaving unless [blank].”

4. The Job is not Complete Until the

Paperwork is Done

Any agreement should be reduced to writing before leaving the mediation. Because “buyer’s remorse” is too common, memorializing the agreement while all par-ticipants agree is critical. Experienced attorneys com-monly bring a form agreement they can use to capture

The Perfect Mediation,

cont. from page 25basic settlement terms. Most ADR providers have a fill-in-the-blanks form to document agreements.

In the perfect mediation, reducing the settlement to writing is a given. Even though the hour is late, it is a disservice to the clients to say you will prepare the writ-ten terms later. While capturing everything in the mo-ment may be impossible, failure to write out the essen-tial terms will create opportunities for future problems.

The perfect mediation is a goal. In the final analysis, every mediation seeks to provide a process where dis-puting parties can discuss and resolve disputes. The self-determination aspects make the process more satisfying than trial.

Being sensitive to the elements of a perfect mediation increases the likelihood of resolution. Even without resolution, the process will give both litigants and attor-neys significant insights, and will allow them to present a better, more focused trial. s

Hon. Richard S. Flier (ret.) served on the Contra Costa Superior Court for 20 years. His assignments as a Superi-or Court Judge included Civil Fast Track, General Trials, Family Law, Criminal Calendar and Appellate Depart-ment. Now with ADR Services, Inc., Judge Flier is recog-nized as a patient, courteous and perceptive judge who has a tremendous capacity to quickly grasp issues, and is very effective in guiding parties toward resolution.


Students Learn the Reality of Law in

GJELL’s Summer Program

I n July 2015, Gillin, Jacobson, Ellis, Larsen & Lucey (GJELL) sponsored its third annual pro-gram for high school students,

entitled “Introduction to Careers in Law.” Sixteen students from various East Bay high schools attended.

The program responds to a con-cern that high school students ap-pear to have no real grasp of legal and paralegal career opportunities, and that what perceptions they do have come from movies and televi-sion, not reality.

The program began with GJELL partner Andy Gillin’s talk on “What’s a Law Firm.” Partner Ralph Jacobson followed with instruction on “Civil Procedure 101.” Jacobson

discussed the role of lawyers in dis-pute prevention and resolution, the sources of legal authority in state and federal courts, and the phases of civil litigation from pleadings to verdict.

Through plain good luck, GJELL learned about an exciting one-hour panel at the Contra Costa County District Attorney’s Office in Mar-tinez that same day, and the stu-dents were invited to attend. Panel members, including the Presiding Judge Steven K. Austin, District At-torney Mark Peterson, Jonathan Laba (with the Public Defender’s Of-fice) and Nick Casper (President of the CCCBA), addressed how lawyers and judges deal with the stresses of daily work.

Back at GJELL’s Orinda office, two subsequent speakers presented the students with a stark contrast in the types of law careers available. Attor-ney Kathryn Korn talked about her love for her conservatorship and probate practice, in part because of the personal involvement and sat-isfaction she feels in helping her cli-ents overcome their legal problems.

Then attorney Anthony Jones de-scribed drafting patents for his tech-nology clients, and the advantages he gained in this field with his elec-trical engineering degree and pre-law school industry experience.

GJELL partner Kristin Lucey next presented both popular media re-ports and the true facts and damage claims from the infamous 1994 “Mc-Donald’s Coffee Case” (Liebeck v. McDonald’s Restaurants). The stu-

dents examined the case from the perspective of an associate who had been asked to evalu-ate whether her firm should agree to repre-sent the plaintiff.

The students next served as

by Andrew R. Gillin

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program, “This week was a lot more meaningful (not to mention engag-ing) to me than my previous classes and books on constitutional law.”

Additionally, multiple students exited the program with a strength-ened interest in the law. One partic-ipant said he was “more interested in law than ever due to this pro-gram,” and another remarked that one speech, in particular, “definite-ly inspired [her] to pursue a career as a lawyer.”

This program was designed to spark and cultivate an interest in the law. Those that shared their time to make this program possible were pleased with the feedback from this year’s outstanding group of students. s

Andy Gillin is the managing part-ner of Gillin, Jacobson, Ellis, Larsen and Lucey, a plaintiff’s firm han-dling catastrophic injury cases. He began his career in legal services for the poor.

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mock jurors, hearing evidence and then “deciding” the apportionment of a wrongful death settlement be-tween divorced parents. This pre-sentation was made by GJELL part-ner Jim Larsen, based on a recent case.

The next event was watching a case in court, in the courtroom of Judge Robert McGuiness of the Al-ameda County Superior Court. The students witnessed direct and cross examinations of both a plaintiff’s economist regarding loss of earn-ings and a treating health care provider in a personal injury case where liability was admitted, but damages remained at issue.

The opportunity to view a civil tri-al dovetailed into a presentation by GJELL partner Luke Ellis concern-ing investigation of a catastrophic injury claim and the impact and ef-

fectiveness of demonstrative videos and exhibits at settlement and at trial.

Still smiling after duking it out for many years, Deputy DA Scott Swisher and Deputy PD Bob Mertens, both from Alameda Coun-ty, next presented a criminal law forum, discussing substantive, ethi-cal and lifestyle issues that face law-yers in the criminal justice system. GJELL paralegal Miguel Hernandez then explained how his career had evolved, and provided materials fo-cusing on paralegal careers.

On the final day, Google attorney Laura Mastrangelo gave her per-spective of working in “big law,” and about her transition to work in high-tech litigation.

With much help from the judi-ciary, local attorneys and the Bar Association, the students got about as long a look into the reality of the legal field as they are likely to get in their high school years. As one stu-dent wrote at the conclusion of the

GJELL’s Summer Program,

cont. from page 27


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THANK YOU

to CCCBA’s

Free Legal Workshop

Volunteers

The CCCBA offers many different free legal workshops to the public every month, everything from bankruptcy to family law, wills & trusts to immigration and more.

We are only able to offer this wonderful public service because of the many attorney volunteers who gener-ously give their time and talent to the residents of Contra Costa.

We would like to express our gratitude to these volunteers:

• Amy Alvis

• Lisa Edgar-Dickman

• Michael Epstein

• Vahishta Falahati

• Marco Garzon

• Gautam Jagannath

• David Katzen

• Jacqueline Klein

• Marcel Knaup

• Shari Kumin

• David Lederman

• Leonard Marquez

• Bill Rubendall

• Ivette Santaella

• David Schuricht

• Geoffrey Steele

• Katherine Threlfall

Interested in volunteering for

a Free Legal Workshop?

Contact Theresa Hurley at [email protected] or (925) 370-2548 for more information.

Connecting is easier with the

CCCBA Mobile App!

Download today:

SEPTEMBER 201530

pro bono

Are you interested in pro bono opportunities in Contra Costa County, but don’t know what is available? Join us for a Pro Bono Mixer on October 28, 2015, from 5:30 p.m. – 7:30 p.m. at the Pyramid Alehouse in Walnut Creek.

We’ll provide appetizers, a drink ticket and most importantly—the nonprofits who need your assistance! You’ll have the chance to speak to legal service providers from a host of local agencies and find out about how you can help Contra Costans in need. Participating agencies include:

• Bay Area Legal Aid

• Contra Costa Family Justice Center

• Rubicon Legal Services

• Contra Costa County Law Library

• Congress of Neutrals

• Social Justice Collaborative

• Contra Costa Senior Legal Services

• CCCBA’s Legal Workshops

To register or for more information, please contact Anne Wolf at at (925) 370-2540 or [email protected].

Sponsored by Ferber Law and The Derby Law Firm

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ethics corner

Secret

Settlements

M any of the issues that arise in mediation have been touched on before in this column;

confidentiality, conflicts of inter-est and negotiation tactics among them.

But mediation brings a new spin to these issues, particularly because of a lack of enforceable black-letter rules. There are policy consider-ations as well—both advocates and mediators engage in balancing acts between the parties and, on occa-sion, between the client and the public welfare.

For instance, sometimes a media-tion settlement is offered only on the condition of secrecy. When a mediator sees a disparity in power between the parties or a litigator sees a danger in “secretizing” a set-tlement about an issue that endan-gers the public, mediators must rec-oncile a personal morality and their professional obligations.

Historically, ADR was used by stipulation of the parties. As a re-sult, formal ethics rules governing the process of mediation were slow to develop. The American Bar As-sociation largely shied away from developing extensive rules about

mediation, even during the Ethics 2000 revisions.

But over the last dozen or so years and after some false starts during the 1990s, extensive rules of conduct for mediators have been developed and adopted by several organiza-tions and some states. Why was it so hard to do? Because the rule drafters lumped arbitration and mediation together as “ADR,” even though the two are very different.

There was already the federal Ar-bitration Act of 1954 that requires courts to recognize and enforce arbitration awards that are funda-mentally fair, and the Uniform Ar-bitration Act adopted in 49 states.

Because mediators were not judges and had no decision making power, codified regulations were slower to develop.

But we now have the Uniform Mediation Act and the Model Stan-dards of Conduct for Mediators. States are free to take whatever por-tions they want from the Act.

Like most rules that attempt to govern the conduct of all lawyers in all matters at all times, there are eth-ical dilemmas that are unaddressed.

For example, what happens when a mediator calls an attorney in for a “private chat without the client.” The mediator then says the oppos-ing party has made a one-time offer

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of $3 million dollars because there are “smoking gun” documents showing that the breast cancer treatment drug that killed the plaintiff’s wife was tainted, and di-rectly responsible for the deaths of several other people and the near-death poisoning of others.

The offer is dependent on the plaintiff’s lawyer not giving any specifics to the client, and on the parties en-tering into a settlement agreement in which neither the amount nor the information about the other adverse in-cidents may be revealed.

Is it ethical for the plaintiff’s lawyer to meet with the mediator without her or his client? May the lawyer rec-ommend settlement while keeping the specifics about adverse incidents from her or his client? Would a totally confidential settlement be ethical even if the attorney could tell the client what she or he knows? All hard questions, not answered by our Rules.

Secret settlements can come in several forms. Protec-tive orders like those in the Big Tobacco cases were once routinely granted by Judge Lee Sarokin, who later stat-ed, “I must confess that for a considerable period of time, as a routine matter I signed consent orders on the theory that since the parties agreed and the lawyers agreed, there was no reason for us to examine the agree-ment. But I slowly came to the real-ization that there were other inter-ests involved.”1 Those interests, of course, belong to the public.

Stipulated reversals and depub-lication are the worst of secret set-tlements in this author’s opinion; those involve agreements to wipe the trial court’s judgment in favor of the plaintiff off the books by stip-ulating to reverse that judgment on appeal in return for immediate payment, usually of a large sum of money. In this gold-from-dross procedure, the loser of the case be-comes the de jure winner, and can trumpet that “victory.”

Secret settlements have been en-tered into in clergy abuse matters, the Bridgestone Tire cases, legal malpractice cases involving ma-jor misappropriations and several pharmaceutical cases. The prob-lem with the current lack of ethics standards relating to secrecy is that

many attorneys believe their duty of advocacy trumps any possibility of disclosing the potential harm to the public even if it is permitted under our confidentiality rules.

So long as the agreements are “ethical,” they will be entered into regardless of any danger to the public, on the theory that the client’s interests (usually considered by lawyers to be financial ones) come first.

A sea change on the issue of secrecy is likely to occur only when lawyers are widely prohibited from contract-ing away their ability to disclose known, discovered dangers to the public so that their sole client may ben-efit. If there is a real hidden danger to the public, such settlements should be disallowed. s

Carol M. Langford is an attorney specializing in State Bar defense and attorney conduct matters. She is also a lecturer in Law at UC Berkeley Boalt Hall School of Law.

1 Jaffe, “Public Good vs. Sealed Evidence,” Star-Ledger (Newark), Sept. 2, 1990.

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CALENDARUPCOMING EVENTS | OVERVIEW

Sept 8 | Family Law Section

Prescription Drugs and Child Custody Issues

more details on page 35

Sept 10 | CCCBA

Job Search Strategies for Success



Child Development


Sept 16 | CCCBA

Cybersecurity: What You Need to Know,

Part 5 of the 2015 Law Practice Management Series


Sept 17 | Women’s Section

Women’s Section Annual Luncheon


Sept 22 | Employment Law Section

LEAVE LAW SUMMIT



Tracing: Where the Facts Meet Finesse


Sept 25 | Barristers/Young Lawyers Section

Barristers Night Out:

A’s vs. Giants Battle of the Bay Social


Sept 26 | CCCBA

Practice Area Expo


Sept 30 | Estate Planning & Probate and Tax Sections

Regulations on Portability of

Unused Spousal Estate Tax Exclusion


Oct 1 | CCCBA

Gala Reception in Support of the

Family Justice Center Legal Incubator Project


Oct 6 | CCCBA

Bench/Bar Roundtable


Oct 6 | Estate Planning & Probate Section

Brown Bag Lunch with Judge Sugiyama


Oct 21 | CCCBA

This is Not Your Parents’ Law Firm,

Part 6 of the 2015 Law Practice Management Series


Oct 23 | Family Law Section

Cognitive Bias: A Threat to Objectivity


Oct 28 | Bankruptcy Law and Estate Planning & Probate Sections

How to Avoid Exposing Your Clients’ Assets

to Creditors in an Estate Plan


Oct 28 | CCCBA

Pro Bono Mixer


Oct 29 | Women’s Section

Women’s Section Scholarship Dinner


Nov 5 | Diversity Committee

Judicial Appointments Workshop


Nov 21 | CCCBA

21st Annual MCLE Spectacular



September 11 | Family Law Section

Child Development

Speakers: Robert L. Kaufman, Ph. D S. Margaret Lee, Ph. D

Time: 1:30 pm – 4:45 pm

Location: Contra Costa County Country Club 801 Golf Club Rd., Pleasant Hill

MCLE: 3 hours family law specialization MCLE credit

Cost: $100 for section members, $125 for CCCBA members, $150 for non-members

Registration: Online at www.familylawsectioncontracosta.org

More Info: Contact Therese Bruce at (925) 930-6789 or [email protected]

September 10 | CCCBA

Job Search Strategies for Success

Learn how to put your best foot forward when looking for a legal position! Join us for an informative session where our experienced panel members will cover the following:

• Resume and cover letters; what works and what doesn’t

• Interviewing do’s and don’ts• The importance of networking• The job search process• Trends in legal jobs

Q & A to follow the panel presentation.

Speakers: Audrey Gee, Brown, Church & Gee Jennifer Shin, Robert Half Legal Nandor Krause, Archer Norris

Time: 5 pm – 6:30 pm

Location: JFK University 100 Ellinwood Way, Room S304, Pleasant Hill

RSVP: Online atwww.cccba.org/attorney/calendar

More Info: Contact Anne Wolf at (925) 370-2540 or [email protected]


Prescription Drugs and Child

Custody Issues

Speakers: Alex Stalcup, M.D. David Kan, M.D. MIchael Levine, M.D.

Time: 1:30 pm – 4:45 pm


MCLE: 3 hours family law specialization MCLE credit




September 17 | Women’s Section

Women’s Section Annual Luncheon

SAVE THE DATE!

Time: 12 pm – 1:30 pm

More info coming soon.


Cybersecurity: What You Need to

Know, Part 5 of the 2015 Law

Practice Management Series

When does it become your legal obligation to safeguard information? Discover security challenges, rewards and best practices for protecting data. Topics include:

• Types of Private Information• The Truth About Hacking• Virtual Private Network (VPN)• Multi-Factor Authentication• Securely Conducting Virtual Depositions• Implications of Using the Cloud• Password Policies

Speaker: Mike Murray, Veritext

Time: 4:30 pm – 6 pm


MCLE: 1.5 hours general MCLE credit

Cost: $20 for CCCBA members, $10 for law student members, $30 for non-members

Registration: Online atwww.cccba.org/attorney/calendar

September 22 | Employment Law Section

LEAVE LAW SUMMIT

Co-sponsored by the CCCBA and the ACBA.

Baffled by all the rules and regulations on the protected LEAVES guaranteed to Employees? Concerned about whether you and your clients are up-to-date on recent statutory and regulatory changes? Want to know what NEW regulations are likely to be coming? Don’t miss this Summit and get all the information you need to advise your clients! Light breakfast included.

The presenters are a panel of experienced employment attorneys, with employee’s counsel, employer’s counsel and neutrals.

Time: 8:30 am – 12:30 pm

Location: Wendel Rosen Black & Dean, 1111 Broadway St., 19th Floor, Oakland

MCLE: 3 hours general MCLE credit

Cost: $60 for section members, $40 for law students, $75 for CCCBA members, $85 for non-members (Discount for registering before Sept. 15)


SEPTEMBER 201536

September 30 | Estate Planning & Probate and Tax Sections

Regulations on Portability of Unused

Spousal Estate Tax Exclusion

Speaker: John Hartog

Time: 11:45 am – 1:30 pm

Location: Scott’s Seafood Restaurant 1333 N. California Blvd., Walnut Creek

MCLE: 1 hour EP&T probate specialization/ 1 hour tax specialization MCLE credit

Cost: $40 for sponsoring section members, $20 for law students, $45 for CCCBA members, $50 for non-members



September 25 | Barristers/Young Lawyers Section

Barristers Night Out: A’s vs. Giants

Battle of the Bay Social

Join the CCCBA and ACBA Barristers Sections for a night out at the Oakland Athletics game against the SF Giants.

The Battle of the Bay is a great opportunity to socialize and network with your peers while enjoying a fantastic evening of base-ball. Please join us for a pregame tailgate with food and drinks before the game in Section 130.

Time: 5:30 pm – 10 pm

Location: Oakland Coliseum 7000 Coliseum Way, Oakland


Tickets: Contact the Alameda County Bar Association at (510) 302-2201

More Info: www.acbanet.org/Calendar/Signup.aspx?EventNo=2642

October 6 | CCCBA

Bench/Bar Roundtable

Members of the CCCBA are invited to attend a meeting with Civil Division Supervising Judge Craddick and other civil judges to discuss issues of general interest or concern.

The judges would like to know what’s on your mind. Please submit discussion topics to the Bar Association by September 30 via email to Anne Wolf at [email protected].

Speakers: Hon. Barry Goode, Presiding Judge Hon. Judith Craddick Hon. Jill Fannin Hon. George Spanos

Time: 12 pm – 1:15 pm

Location: Wakefield Taylor Courthouse Dept. 9, 725 Court St., Room 320, Martinez

MCLE: 1 hour general MCLE credit

Cost: Free for section members, $10 for non-members



October 6 | Estate Planning & Probate Section

Brown Bag Lunch with Judge

Sugiyama

Speaker: Hon. John H. Sugiyama

Time: 12 pm – 1 pm

Location: Contra Costa Superior Court Dept. 14, 725 Court St., Martinez




Practice Area Expo

Law students and new attorneys: Join us for an opportunity to learn from experienced at-torneys about what it is like to practice law!

Attendees will have the opportunity to meet practitioners from a variety of practice areas who will speak about what it’s like to work in their field, tips on finding employment, internship opportunities and presentation skills specific to those practice areas. Prac-tice Area Roundtables include:

• Public Attorneys• Transactional• Employment• Litigation• Probate/Estate Planning• Family• Criminal• Solo/Contract attorneys

Time: 10 am – 12 pm




Tracing: Where the Facts Meet

Finesse

Speaker: James T. Schaefer,CPA/CFF MS-Tax, Schaefer & Co., CPA

Time: 12 pm – 1:15 pm


MCLE: 1 hour family law specialization MCLE credit

Cost: $50 for section members, $75 for CCCBA members, $100 for non-members (Fees increase after Sept. 16)

Meal Choice: Poached Salmon, Chicken Picatta or Vegan




October 23 | Family Law Section

Cognitive Bias: A Threat to

Objectivity

Speaker: Dr. Philip Stahl, Ph. D, ABPP (Forensic)

Time: 12 pm – 1:15 pm


MCLE: 1 hour elimination of bias MCLE credit

Cost: $50 for section members, $75 for CCCBA members, $100 for non-members (Fees increase after Oct. 16)

Meal Choice: Grilled Salmon, Roast Sirloin or Vegetable Risotto



October 21 | CCCBA

This is Not Your Parents’ Law Firm,

Part 6 of the 2015 Law

Practice Management Series

Areas of discussion will include potential alternative models and how they work in practice in comparison to traditional models of managing a law firm. In addition, the panelists will discuss the pros and cons of various alternative and traditional manage-ment practices.

Speakers: Harry Stern, Rains Lucia Stern, PC Marie Barnes, Ad Astra Law Group Renee Livingston, Livingston Law Firm

Time: 4:30 pm – 6 pm


MCLE: 1.5 hours general MCLE credit

Cost: $20 for CCCBA members, $10 for law student members, $30 for non-members


October 28 | CCCBA

Pro Bono Mixer

Sponsors: Ferber Law & the Derby Law Firm

Interested in pro bono opportunities in Con-tra Costa County? We’ll provide appetizers, a drink ticket and most importantly—access to the nonprofits who need your assistance! You’ll have the chance to speak to legal ser-vice providers from a host of local agencies and find out about how you can help those in need. Participating agencies include:

• Bay Area Legal Aid• Family Justice Center• Rubicon Legal Services• Contra Costa County Law Library• Congress of Neutrals• Social Justice Collaborative• Contra Costa Senior Legal Services• CCCBA’s Legal Workshops

Time: 5:30 pm – 7:30 pm

Location: Pyramid Alehouse 1410 Locust St., Walnut Creek


October 29 | Women’s Section

Women’s Section Scholarship Dinner

SAVE THE DATE!

Please join us for the Women’s Section’s Annual Scholarship Dinner, awarding the Hon. Patricia Herron and Hon. Ellen James Scholar-ship. Topic will be on gender and racial bias on corporate boards and what we can do about it.

Speakers: Kim Clancy Jennifer McClanahan Flint

Time: 5:30 pm – 7:30 pm

Location: Scott’s Garden 1333 N. California Blvd., Walnut Creek

MCLE: 1 hour elimination of bias MCLE credit

More info coming soon.

November 5 | Diversity Committee

Judicial Appointments Workshop

Please join the CCCBA and the State Bar of California’s Council on Access and Fairness for the popular Demystifying Judicial Appointments program.

A panel of judges will explain how judges are appointed under the current administration and will shed light on the particular qualifi-cations and attributes the Governor seeks in judicial candidates.

Speakers: Hon. Marguerite Downing Patricia Lee, CA State Bar Robin Pearson

Time: 5:30 pm – 7:30 pm

Location: JFK University 100 Ellinwood Way, Pleasant Hill

Cost: $10 for CCCBA members, $25 for non-members



October 28 | Bankruptcy Law and Estate Planning & Probate Sections

How to Avoid Exposing Your Clients’

Assets to Creditors in an Estate Plan

Speaker: Mark Bostick, Partner, Wendel Rosen Black & Dean

Time: 11:45 am – 1:30 pm

Location: Scott’s Seafood Restaurant 1333 N. California Blvd., Walnut Creek

MCLE: 1 hour EP&T probate specialization MCLE credit

Cost: $40 for sponsoring section members, $20 for law students, $45 for CCCBA members, $50 for non-members



SEPTEMBER 201538

advertisers index

ADR Services . . . . . . . . . . . . . . . . . . . . . . 26

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Advertise in the Contra Costa Lawyer

Call Dawnell Blaylock at (925) 370-2542 or [email protected].

LITIGATION ATTORNEY

CCCBA solo, 20+ years experience in insurance defense: medical malpractice, elder abuse, personal injury, contracts, escrow. Available for contract/project work. Contact Deborah L. Phillips at 925-895-5207 or [email protected].

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SEPTEMBER 201540

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Contra Costa Lawyer, September 2015

Documents

Transcript of Contra Costa Lawyer, September 2015