Achieving Your Goals Through Successful Mediation (A Nuts & Bolts Primer)

1. Achieving Your Goals Through Successful Mediation (A Nuts & Bolts Primer) Speakers Hon. Joe Hilberman Irvine. Hon. Michael Latin Westlake Village. Torrance. Hon. Patricia Collins Torrance. Steven Pearl, Esq. Westlake Village. Downtown-LA. Hon. Victor Persón Downtown-LA. Scott Dickinson, Esq. Irvine. Association of Corporate Counsel: ACC-Socal Chapter Century City Downtown-Los Angeles Irvine San Diego Silicon Valley San Francisco

2. Selecting a Mediator • Facilitative • Evaluative • Empathetic • Candid / Blunt • Favored by the other side • Gender / Ethnicity / Bilingual • Area of Expertise: legal and technical • Judge or Lawyer Century City Downtown-Los Angeles Irvine San Diego Silicon Valley San Francisco

3. Determining How Much Time to Schedule • Single Party / Multiparty • Complexity • Frailties of Participants Century City Downtown-Los Angeles Irvine San Diego Silicon Valley San Francisco

4. Preparing the Settlement Agreement • Preparebefore mediation • Identify all of the issues to be resolved • Determine the necessary signatory • Discuss with company decision-maker Century City Downtown-Los Angeles Irvine San Diego Silicon Valley San Francisco

5. Who to Bring?(and who not to bring) • BRING: Person with authority to sign the agreement • BRING: Person who can legally bind the parties • CONSIDER: Significant percipient witnesses or those intimately familiar with the facts • CONSIDER: Transactional Counsel? • CONSIDER: Litigation Counsel? • CONSIDER: Only Outside Counsel? • LEAVE BEHIND: People who will impede settlement (ie: people with more at stake in vindication than resolution) Century City Downtown-Los Angeles Irvine San Diego Silicon Valley San Francisco

6. What to Bring? • Significant exhibits • Deposition testimony – electronic or hardcopy • All evidence that exists electronically • Evidence that refutes arguments in opponent’s brief or anticipated arguments • Consider bringing food • Would a site visit be helpful? • Photographs and diagrams to assist mediator Century City Downtown-Los Angeles Irvine San Diego Silicon Valley San Francisco

7. Premediation Meeting • Monetary ranges • Material goals • Estimate costs of litigation • Recoverability of attorneys fees • Discuss significance of CCP §998 offer • Discuss ranges of outcomes • Discuss appellate rights and costs • Consider whether company’s decision-maker should hear the negatives first from counsel or first from mediator • Review facts and evidence • Discuss compromise, diplomacy, tact and tone • Discuss Mediator’s role Century City Downtown-Los Angeles Irvine San Diego Silicon Valley San Francisco

8. The Mediation Brief • Exchange with Opposing Side: Before or During Mediation? • Any confidential facts can be included in a separate cover letter or side brief • Include legal analysis of key issues • Include discovery status and procedural posture • Include prior settlement discussions • Attach significant exhibits Century City Downtown-Los Angeles Irvine San Diego Silicon Valley San Francisco

9. Contacting the Mediator in Advance • Give the Mediator a “head’s up” on particular sensitive or personality issues • If mediator has read other side’s brief, ask mediator what issues you will need to be prepared to focus on • Ask if Mediator wants you to bring anything in particular (if the briefs have been read) Century City Downtown-Los Angeles Irvine San Diego Silicon Valley San Francisco

10. Negotiation, Tactics, and Posturing; Effective Styles • Know your opposition • Know your mediator • Your Style may be dictated or influenced by your company decision-maker’s style or their emotional involvement • Think outside the box and consider external factors that impel settlement Century City Downtown-Los Angeles Irvine San Diego Silicon Valley San Francisco

11. IMPASSE • Consider impasse an opportunity to reassess • Impasse is part of the process • Consider alternative compensation or resolution • Realty check time for company? • Mediator’s Proposal • Bracketing • Discuss future in the absence of settlement • Take a break/Go for a walk Century City Downtown-Los Angeles Irvine San Diego Silicon Valley San Francisco

12. Wage and Hour, Class Action • Different considerations at Different Stages • Pre-Litigation or Early in Litigation: • Likelihood of compelling class or individual arbitration: application of AT&T Mobility v. Conception and subsequent developments • Pre-Certification: • Likelihood of class certification: application of Wal-Mart v. Dukes and subsequent developments • State v. Federal Court • Post-Certification: • Likelihood of decertification • Potential Outcomes at Trial • Value of Class-Wide Releases • Discuss attorneys fees in conjunctions with damages or after resolving damages number Century City Downtown-Los Angeles Irvine San Diego Silicon Valley San Francisco

13. Binding Arbitration • Consider binding arbitration as a settlement option or contractual requirement • Hi-Low Arbitration Alternative Century City Downtown-Los Angeles Irvine San Diego Silicon Valley San Francisco

14. Cost-Effective Binding Arbitration • Skype: allow witnesses to appear over video conference • Stipulations • Deposition transcripts rather than live witnesses • Resolution of ancillary or undisputed issues Century City Downtown-Los Angeles Irvine San Diego Silicon Valley San Francisco

15. Benefits of Mediation • A Cautionary Tale: Duran v. US Bank* • Eliminates risk • Less costly • Provides certainty • Eliminates opportunity costs • Decision is in your hands, not judge or jury • Obtain relief not available in litigation • Speedy resolution • Potentially less stressful • Maintain confidentiality and keeps dispute outside public domain Century City Downtown-Los Angeles Irvine San Diego Silicon Valley San Francisco

16. Please feel free to contact us if you have any questions… www.ADRServices.org

17. About the Speakers Hon. Joe Hilberman Los Angeles Superior Court judge (ret). Founder of Fonda Hilberman & Fraser (spec. in insurance defense). Named a Top 50 Neutral by Daily Journal Newspaper for 2010 and 2011. Hon. Michael Latin Los Angeles Superior Court judge (ret). Supervising site judge of Van Nuys Courthouse. LA District Attorney’s Office. Littler Mendelson (spec. in employment defense). Named California Lawyer of the Year by the California Lawyer Magazine in 2003. Hon. Patricia Collins Los Angeles Superior Court judge (ret). Assistant US Attorney. Adams Duque & Hazeltine (spec. in business litigation, antitrust, and insurance defense) . Named a Top 50 Neutral by Daily Journal Newspaper for 2010 and 2011. Steven Pearl, Esq. Law Offices of Steven G. Pearl (spec. in employment litigation). Orrick Herrington & Sutcliffe (spec. in employment and insurance defense, business and entertainment law litigation). Author of Wage & Hour Class Action Update. Scott Dickinson, Esq. Gilbert Kelly Crowley & Jennett (spec. in insurance defense). Burge Strid & Dickinson (spec. in business and tort litigation). Advanced Degree in Physiology. Named Top 50 Neutral by Daily Journal Newspaper for 2010 and 2011. Hon. Victor Persón Los Angeles Superior Court judge (ret). LA District Attorney’s Office (Civil Litigator in Consumer & Environmental Protection Division) . Named Top 50 Neutral by Daily Journal Newspaper for 2009. Available to Serve as Mediators and Arbitrators at …