California Mediation and Arbitration

Mediation: A Court’s Impassioned Plea: Please, Please Try To Mediate

The Setting: Dispute Is More Than Ten Years Old, This Is Second Appeal, And There's Still Plenty Of Fight Left In the Old Boys . . .

    Early on the Court's opinion oozes frustration: "As much as we are loathe to drag on this protracted litigation any longer, we conclude we must reverse and remand for a more detailed statement of decision on certain issues." La Melza v. Lindsay, No. G051506, G051514 (4/3 1/13/17) (unpublished). Evidently, this case is one of those cases for associates yet unborn. I won't even bother to recite the gnarly facts. What caught my attention was the impassioned plea by Justice Moore that the parties try and mediate their differences:

    "This case has been dragging on for more than a decade. As the Gilroy defendants' counsel noted in a motion for calendar preference, all of the principals are now in their 70's or 80's. We urge both the parties and the court to take all practical steps to reach a judgment in the trial court as quickly as possible. In the same vein, we also urge the parties to set aside what are obviously long-held and deep-seated emotions about this matter and work with an experienced mediator to settle this case. The alternative, even in the best case scenario, is another two or three years spent in the trial court and in our gracious company, resulting in thousands upon thousands of dollars in fees and costs. The parties would be far better served, and would probably find the ultimate outcome far more satisfactory, if they reached a resolution among themselves."

    Adding to the overwhelming sense that the parties are lost in a Dickensian quagmire located near the ruins of Bleak House is that the majority opinion, penned by Justice Moore with Justice Thompson concurring, draws a dissenting opinion! Justice Aronson, dissenting, "would invite the parties to brief whether we can correct our earlier opinion and retrace our steps to a proper path so the trial court may perform its factfinding function and enter a new judgment consistent with its findings." Justice Aronson in turn quotes from the dissent by a frustrated Justice Frankfurter: "Wisdom too often never comes, and so one ought not to reject it merely because it comes too late."

    To which I add a few additional words of legal wisdom gleaned from dead practitioners:

    "About half the practice of a decent lawyer consists of telling would-be clients that they are damned fools and should stop." -- Elihu Root.

    "An incompetent attorney can delay a trial for years or months. A competent attorney can delay one even longer." -- Evelle J. Younger.

    But Charles Dickens gets the last word, with the characters in Bleak House explaining the end to the seemingly interminable, intractable, and ridiculous case of Jarndyce and Jarndyce:

    "Mr Kenge," said Allan, appearing enlightened all in a moment. "Excuse me, our time presses. Do I understand that the whole estate is found to have been absorbed in costs?"

    "Hem! I believe so," returned Mr Kenge. "Mr Vholes, what do you say?"

    "I believe so," said Mr Vholes.

    "And that thus the suit lapses and melts away?"

    "Probably," returned Mr Kenge. "Mr Vholes?"

    "Probably," said Mr Vholes.

Mediator: Court of Appeal Reverses $313,206 Jury Award In Favor Of Whistleblowing Mediator

Mediator Gallup Walloped For Failure To Exhaust Administrative Remedies.

     Family services mediator Emily Gallup complained to her supervisor and other court management about “insufficient time for mediation appointments, inadequate review of records and gathering of facts, failure to consider criminal histories, failure to advocate for the best interests of the children, failure to offer separate mediation to domestic violence victims, and use of undue influence to pressure parents into mediated agreements.”  Following her complaints, she alleged “escalating criticism and punitive actions culminating in termination.”

     She successfully sued the Superior Court of Nevada County (SCNC) under the whistleblower statute, Labor Code section 1102.5(b) and received an award for $313,206.  The Court of Appeal, however, reversed the judgment, because she failed to exhaust administrative remedies, a requirement of Labor Code section 98.7.  Gallup v. Superior Court of Nevada County, C073452 (3rd Dist. March 30, 2015) (Blease, Nicholson, Duarte) (published). 

     The published case will be of interest chiefly to employment and labor law attorneys, because the case has a detailed discussion of the retroactivity of the application of the administrative exhaustion requirement to the whistleblower protections, following changes in the law.  The Court concludes the exhaustion requirement still applies retroactively despite changes made to the law in 2013.  In so ruling, the Court of Appeal followed Campbell v. Regents of University of California, 35 Cal.4th 311 (2005), as controlling authority, and rejected Lloyd v. County of Los Angeles, 172 Cal.App.4th 320 (2009) as non-controlling.

     The case is likely to be limited in its impact, as legislation passed in 2013, adding Labor Code section 244, states in part that “An individual is not required to exhaust administrative remedies or procedures in order to bring a civil action under any provision of this code, unless that section under which the action is brought expressly requires exhaustion of an administrative remedy . . . “  Mediator Gallup filed her action in April 2011.

Mediation/Mediators: Paws for a Moment – Pet Mediators

New Breed of Mediator Helps to Resolve Bones of Contention

     Pet mediation is the subject of Veronica Dagher’s April 30, 2012 article in the venerable Wall Street Journal, entitled “A Dog’s Bark Is Better Than Litigation’s Bite.” 

     During my years as a litigator, I’ve actually encountered several acrimonious lawsuits involving dogs – one of which resulted in a court order to debark a neighbor’s dogs. 

     As a result, the concept of pet mediation does not seem altogether frivolous.  In fact, as Ms. Dagher’s article points out, pet mediation may be useful in the case of a “custody dispute” accompanying a divorce, or a neighbor dispute over barking or rowdy dogs.  If the problem can be solved in two hours by a mediator charging $250/hour, then the participants can leave without ill will, feeling their leashes have not been yanked too hard.  And if the mediation fails, maybe the parties were just barking up the wrong tree.

     None of the mediations involved in Ms. Dagher’s article involved cats.

 

Mediation: Court of Appeal Rules that Court Cannot Force Mediation Upon Parties or Sanction Party for Failure To Mediate

Party Timely Sought to Withdraw from Mediation Prior to Appointment of Mediator

      The “take away” of this case comes in its opening paragraph: 

     “Petitioners (defendants below and their attorney) seek a writ to vacate an order sanctioning them for failing to personally attend a mediation session and requiring them to participate in further mediation.  Plaintiffs, real parties in interest, respond by urging us to rule that once an attorney orally agrees to mediate a dispute neither that attorney nor the client may withdraw consent absent court approval upon a showing of good cause; we hold otherwise.  We grant relief because (1) the court had no authority to mandate mediation, (2) there was no enforceable agreement to mediate; and (3) in any event, there was no failure to comply with the court’s mediation order.”  Kirschenman v. Superior Court of Contra Costa County [Hammons et al., real parties in interest], 30 Cal.App.4th 832, 833-834, 36 Cal.Rptr.2d 166 (1994).

      Distinctions matter.  In Lu v. Sup. Ct., 55 Cal.App.4th 1264 (1997), the court refused to extend the holding of Kirschenman:  “[W]e do not think it appropriate to extend Kirschenman to complex litigation to hold that, absent express statutory authorization, courts are powerless to devise procedures to expedite and facilitate the management of complex cases.”  Id. at 1290-91.  Lu involved complex litigation, a referee rather than a mediator, and a settlement conference that was mislabeled as “mediation.”