Articles About Mediation In July 2016 Edition Of Orange County Lawyer

The Subjects Are Appellate Mediation And Mediating Employment Disputes With Small Business Owners.

     The July 2016 edition of Orange County Lawyer includes two worthwhile articles about mediation.

Rethinking the Impossible:  Appellate Mediation.

     By the time a case is on appeal, many attorneys and their clients view a case as far beyond the point of settlement.  However, Kerry W. Franich, an attorney in Severson & Werson’s appellate practice group, emphasizes the benefits of appellate mediation.  A judgment may provide an opportunity for revisiting settlement negotiations.

     The opportunities presented by appellate mediation often flow from the passage of time:  decision makers may have changed, parties may have changed, litigation objectives may have changed, and the law may have changed.  In short, the door to settlement may not be shut.

      COMMENT:  Nevertheless, appellate mediation does not have as high a settlement rate as does mediation at the trial court level.  Do any of my readers have statistics on settlement rates for appellate mediation?

       We would add that a significant motivator for engaging in appellate mediation ought to be the rate of reversal on appeal in California.  “With an overall statewide reversal rate of 36% in civil cases, an appeal does not necessarily end the litigation process – it may be only another step in a seemingly endless and costly road to resolution.”  Hon. Jeff Kaplan (Ret.), “Practical Considerations for Post-Trial and Appellate Mediations,” Advocate (Fall 2013).

Reaching for Understanding:  Mediating Employment Disputes With Small Business Owners.

      David Ezra, an attorney with a practice focusing on ADR, insurance and employment law, considers the attributes of small business owners that “can make the mediation process especially challenging.”  Mr. Ezra points out that small business owners are accustomed to making decisions with “no opportunity for consensus building or a second opinion.”  Additionally, relationships in a small business can be highly personal and emotionally charged.  “The mediator,” Mr. Ezra counsels, “needs to resist passing judgment.” 

     Mr. Ezra offers useful suggestions for dealing with the small business owner in mediation – and perhaps he will follow up someday with suggestions for helping the employee through the mediation process.