The Bargaining Granddaughter

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We recently had the joy of visiting with our daughter and son-in-law in Utah.  They have five children. All of them are quick, smart, and unafraid.

My wife said she wanted to take our daughter and our oldest granddaughter out for pedicures.  I suppose that’s what grandparents do on vacation these days.  Taking our oldest granddaughter out for a pedicure would leave our 7 year old granddaughter without a chaperone (or, more accurately, without a babysitter; the other children were already occupied).  My wife asked me if I’d like to take our seven year old granddaughter swimming. My response was “Of course!”  So my young granddaughter and I both got on our swimsuits and headed to a nearby pool.

We enjoyed swimming, diving, playing games and splashing each other for the better part of an hour.  At this point I realized we should be heading home, but I didn’t say anything.  I simply grew quiet for a moment; seeing this, my seven year old granddaughter asked me “Do we need to go back now?”  How did she pick up on that?  I hadn’t said anything about leaving and we were having a great time, but even at her young age she sensed my feelings through nonverbal communication and she spoke to them.

​I said “yes – we need to go now.”  She then said “Can I do one more thing?”  I quickly and easily replied “yes.”  Sensing that she had started the negotiations too low, she said “How about five things?”  I responded with “If I let you do five things I will be a terrible negotiator.”  She then said “How about two?”  I said “alright” and that’s what we did.

The negotiated aspects of this interchange didn’t escape me.  Even though she is only seven years old, she’s already a skilled negotiator (she’d have to be in order to maintain her turf in a family with five children.  She’s the youngest.  If she doesn’t stand up for herself, nobody else will).  By this young age she has already learned how to successfully perceive nonverbal communication to the point where she was able to discern that I felt it was time to go.  Remarkable.  And when the negotiations started, she instantly recognized she had started the bidding too low.  If she asked to do one more thing and I’d told her “No, we need to leave right now” then she may well have been satisfied with doing only one more thing.  In retrospect I can see she was thinking we needed to leave right away and one more thing was all she could hope for.  But she totally read me (and my response).  When I readily and easily acquiesced to her doing “one more thing,” she intuited (correctly) that I would probably allow her to do more things – which lead to her request to do five more things (clearly at this point she was testing the water).

How does this relate to mediation?  We all grow up and realize that lots of things we learned on the playground translate very well into our grown-up situations.  As children we cut our teeth on negotiation techniques with siblings, friends, parents and others.  Our grown-up techniques get more refined and are usually more complex than our childhood techniques, but many of the dynamics are the same as when we were young.

​These days most of my mediations are still done via Zoom, but some are in-person.  I find that counsel who have never mediated via Zoom are often quite hesitant to do so (because they are concerned that they may lose out on the non-verbal communication that happens at mediation). But counsel who have used Zoom extensively soon find out that a mediation on a flat panel screen via a computer platform isn’t as sterile as one might think.  If the equipment is all in working order, then voices through Zoom are transmitted with near perfect clarity (along with all of the tone, pausing and inflection that accompanies all speech).  And if the webcams are working properly then the visual aspect of Zoom is remarkable.  A Zoom meeting isn’t exactly like being in a room with someone – but can be very close.  As a Zoom mediation progresses the focus on the Zoom mechanics tend to lessen to the point where those mechanics are almost invisible.  I find that the Zoom mechanics rarely gets in the way of the mediation process – and I find the success rates of Zoom mediations to be fully interchangeable with in-person mediations.  Between cases which tend to resolve at mediation and those that don’t, I see certain trends and factors affecting success – but the Zoom platform doesn’t seem to be one of them. 

​Whether you are seven years old or seventy, non-verbal communication is going to be key in your mediation and settlement work.  Choosing an environment that fosters effective communication, both verbal and non-verbal, is essential to successful mediation.  All indications – and lots of experience – shows that suitable environments can be created both with Zoom and in-person mediations.  

The foregoing article is provided for general information purposes and should not be used in connection with any specific legal matter.  Persons with legal issues or matters should consult competent legal counsel. 
 
Robert B. Jacobs is an attorney, mediator and arbitrator with over 30 years of litigation experience.  He mediates business, real estate, construction, personal injury, wrongful death, employment, trust and probate cases.  He is a designated Super Lawyer and holds an AV rating with Martindale-Hubbell.  He was the 2020 chair of the ADR section of the Contra Costa County Bar Association and the co-chair of the ADR section of the Alameda County Bar Association. Since 2018 he has been an update author for the CEB treatise Real Property Remedies and Damages. He is an adjunct law professor at Hastings College of the Law in San Francisco.  Reach him at [email protected]

I Settled My Case! Now What?

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Key Points on Drafting an Enforceable Settlement Agreement at Mediation

The posturing, negotiations, drama and stress are over.  The mediation was successful.  You’ve settled the case.

Now what?

Nobody wants to settle a case only to have the settlement fall apart later on.  Everybody wants a settlement that sticks.  But no settlement is bulletproof.

We all know what happens.  Parties settle their case – and then (assuming no confidentiality agreement) they go home and talk about it with their parents, their children, their siblings or their friends.  Sometimes these are happy conversations.  Other times not so much.  Buyer’s remorse (and settler’s remorse) can be a real thing.  

What happens when someone regrets settling a case because after talking it over they think they paid too much – or accepted too little? What do they do then?    

Lawyers are paid (in part) to dissect documents and look for loopholes and imperfections.  We are paid to fight, and if our client wants to back out of a settlement, then we may end up placing a magnifying glass over the written settlement agreement in an effort to break it up.   After all, a settlement agreement is – well – an agreement, which means it’s a contract.  And as we all know, any contract is subject to possibly being broken.

So how do you wrap up your settlement agreement in “armored legalese” so that if it’s attacked, any stones or arrows just bounce off of it instead of making a major headache for you and your clients?

Know and follow key rules that govern the admissibility and the enforceability of settlement agreements that are signed at mediation. Read on.  

Make it Admissible.    In the event of a dispute, the world’s most bulletproof settlement agreement is useless if it’s not admissible in court.  Do attorneys or their clients ever regret signing a settlement agreement and then seek to thwart its enforcement based on inadmissibility? The answer is a clear “YES.”   Evidence Code §1119(a) provides that nothing said in the course of a mediation is admissible, so an oral settlement agreement at mediation isn’t worth the paper it’s not written on.  Evidence Code §1119(b) provides that any “writing” prepared in the course of a mediation is inadmissible.  A settlement agreement is unquestionably a “writing” and is therefore made inadmissible by this section unless an exception applies; Evidence Code §1123 provides that exception.  Section 1123 provides that a “written settlement agreement” prepared “in the course of, or pursuant to, a mediation” isn’t made inadmissible by the mediation sections of the Evidence Code if the following requirements are met:

First, the settlement agreement must be signed “by the parties.” 

Second, the written settlement agreement must satisfy any of the following three criteria:

(a)   The settlement agreement provides that it is admissible or subject to disclosure (or words to that effect); or

(b)  The settlement agreement provides that it is “enforceable” or “binding” (or words to that effect); or

(c)  All parties to the settlement agreement expressly agree in writing, or orally, to its disclosure.  However, such an oral agreement must satisfy each of the following four requirements:

i)  The oral settlement terms must be recorded by a court reporter or by other “reliable” means of audio recording, and

ii)   The terms of the oral agreement must be recited on the record in the presence of the parties and the mediator, and the parties must express on the record that they agree to the terms, and

iii) The parties expressly state on the record that the agreement is enforceable or binding, or words to the effect, and

iv)  The recording must be reduced to writing and the writing must be signed by the parties within 72 hours after it is recorded.

Wow!  Those are a lot of requirements for enforcing an oral settlement agreement.  Miss any one of them and you’re out.  Parties might orally settle a case on the record if they are at the courthouse for a settlement conference, but virtually all mediated cases are settled by written settlement agreement.   

Are these real considerations?  Will a court really refuse to admit a hard-fought signed and written settlement agreement if the other side backs out and refuses to perform?

The answer is unquestionably yes.  The legislature and the courts mean business about these admissibility requirements.  See Fair v. Bakhtiari (2006) 40 Cal. 4th 189, 197 where the Supreme Court declined to enforce a written settlement memorandum because it failed to incorporate all of the elements which Evidence Code §1123 requires in order to create an exception to the nearly absolute ban on admissibility of documents prepared at mediation which is established by Evidence Code 1119.  Not only was the settlement agreement in Fair signed by the parties and the mediator, it also included an arbitration provision.  In holding the settlement agreement inadmissible, the Supreme Court held that such an arbitration provision by itself is insufficient to show that the parties intended to be bound by the settlement agreement.  Instead, “a writing must directly express the parties’ agreement to be bound by the document they sign” and “words to that effect” may be insufficient if they don’t clearly show this express intent to be bound. 

The upshot?  Either include one of the above-described elements of 1123(b) in your settlement agreement or risk having it deemed inadmissible in subsequent court proceedings  (and it’s clear that an inadmissible settlement agreement is unenforceable).

Are there other considerations to enforceability of settlement agreements?  

Yes.  “A settlement agreement is a contract, and the legal principles [that] apply to contracts generally apply to settlement contracts.”  Stewart v. Preston Pipeline Inc., (2005) 134 Cal. App. 4th 1565, 1585.  A settlement agreement’s “validity is thus ‘judged by the same legal principles applicable to contracts generally.’”  Id.  The required elements of a valid, binding contract include consideration and mutual assent, but a full discussion of the elements and enforceability of contracts is outside the scope of this article.  Instead, this article will focus on only one issue in the enforceability of written settlement agreements:  mutual assent as manifested by signatures.

Mutual assent to most written contracts is most frequently expressed by having the contracting parties sign the contract. But mutual assent can be manifested in other ways so that parties can in some situations agree to and be bound by a contract through behavior other than affixing their signature to the contract document itself.  In Stewart v. Preston Pipeline Inc. (2005) 134 Cal. App. 4th 1565, 1584 a mediation concluded with a written settlement agreement that was signed by the plaintiff, plaintiff’s counsel and defense counsel (but not by defendant).  The defendant thereafter repudiated the settlement agreement by claiming 1) it was inadmissible under Evidence Code 1119 as a written document prepared in the course of mediation and 2) it was signed only by his attorney and not by himself.  Litigation was filed and an appeal was taken.  The court of appeal held the signature of defendant’s counsel was sufficient to qualify the settlement agreement for the mediation confidentiality exclusion provided by Evidence Code 1123 so that it was admissible.  Stewart v. Preston Pipeline Inc. supra, 134 Cal. App. 4th at 1583-1584.  The Stewart court noted that in order to be enforceable under C.C.P.  §664.6, a settlement agreement must be signed by each of the parties personally (and not by their attorney).    Id. at 1584 citing Levy v. Superior Court (1995) 10 Cal. 4th 578, 584.   The Stewart court then further cited Levy for the proposition that settlement agreements which do not qualify for enforcement pursuant to C.C.P. §664.6 because they are not signed by the litigants personally may nevertheless qualify for enforcement by alternative methods such as by motion for summary judgment, a separate suit in equity or an amendment of the pleadings.  Stewart v. Preston Pipeline Inc., supra at 1584.  By so holding, the Stewart court expressly confirmed that impediments to enforceability under C.C.P.  §664.6 (such as a lack of the litigants’ personal signatures) may be purely procedural in nature such that some settlement agreements that may not satisfy the necessary elements for enforcement pursuant to C.C.P.  §664.6 may nevertheless still be enforceable (via an alternative method).

Following a successful mediation many attorneys will include in the written settlement agreement a provision that the agreement may be enforced pursuant to motion under C.C.P.  §664.6.  The language of C.C.P. §664.6 provides that “If parties to pending litigation stipulate, in writing . . . for settlement of the case, the court . . . may enter judgment pursuant to the terms of the settlement.”  In Levy v. Superior Court (1995) 10 Cal. 4th 578, the Supreme Court held that the word “parties” as used in C.C.P.  §664.6 means the litigants themselves and not their attorneys.  The Levy opinion thereby foreclosed enforceability of written settlement agreements through a §664.6 motion if the written settlement agreement was signed by anyone other than by the parties themselves.  However, pursuant to Stewart a settlement agreement signed by an attorney (or by another authorized representative) may still be enforceable through court procedures other than a C.C.P.  §664.6 motion.

The California Legislature recently amended C.C.P. §664.6 by broadening the definition of “parties” to include an attorney who represents a party.  C.C.P. §664.6(b)(2).  This amendment became effective January 1, 2021.  By making this change the Legislature brought the enforcement procedures available through §664.6 more in line with effect of the Stewart decision (which expressly recognized the potential enforceability of a settlement agreement through means other than §664.6 when the agreement was signed by a party’s counsel instead of by a party).  Now settlement agreements at mediation can be enforced pursuant to §664.6   if for whatever reason one of the parties is not personally present at the mediation (or is otherwise available to sign the settlement agreement) and the settlement agreement is signed by their attorney.

This new arrangement provides an opportunity for abuse.  Sometimes the interests of a client and their attorney may differ; for several different reasons an attorney may be more interested in settlement than a client is.  The possibility of such abuse is specifically addressed in the 2021 amendment to §664.6 by providing that an attorney who signs a settlement agreement without the client’s “express authorization” is subject to professional discipline.  By including this provision the Legislatures strongly disincentivized California attorneys from making any rogue signatures on settlement agreements that they may otherwise be tempted to make.

This “hammer” of potential professional discipline may create a trap for the unwary practitioner.  Attorneys won’t have a professional discipline problem with clients who never dispute their attorney’s signature on a settlement agreement at mediation.  But what about a client who experiences “buyer’s remorse” and alleges they never authorized their attorney to sign a settlement agreement at mediation?   

If an attorney signs a settlement agreement at mediation on behalf of a client, and if that client becomes unhappy and complains to the State Bar by claiming that the attorney signed the settlement agreement without express authority, what happens?   Since C.C.P. §664.6(d) now expressly provides for attorney discipline, there’s a real chance the State Bar would investigate such a claim.  If the settlement agreement signed by the attorney states that it’s intended to be binding (or otherwise qualifies for the confidentiality exceptions provided by Evidence Code §1123) then such a settlement agreement could properly be admitted into evidence by the State Bar court since it would qualify for an exception to the confidentiality provisions of Evidence Code §1119.  Arguably the client’s statement to the State Bar would not be subject to the confidentiality provisions of §1119 because the client would be asserting a negative:  i.e. “I never authorized the attorney to sign the settlement agreement” and Evidence Code §1119 only bars evidence of anything said at mediation.  The client wouldn’t be relying on nor communicating anything said at mediation, but would instead be relying on a lack of something being said; therefore the client’s complaint may not be subject to mediation confidentiality under §1119.  However, once the client has made an allegation against the attorney that the attorney was never authorized to sign the agreement, the burden of proof would naturally shift to the attorney, who would need show that the client expressly authorized the attorney to sign.  But Evidence Code §1119(a) makes inadmissible anything that was said at mediation, even in an administrative adjudication (which would undoubtedly include State Bar proceedings).  Evidence Code §1119(b) makes inadmissible any writing prepared in the course of a mediation.  Evidence Code §1123 only provides exceptions for settlement agreements, so a written instruction from the client authorizing the attorney to sign the settlement agreement may also be inadmissible unless such a written instruction can be construed as a “settlement agreement.”  It’s a conundrum.  A State Bar court may construe §1119 differently, but under current case and statutory law there’s a real possibility that the attorney would be prevented in a State Bar court proceeding from introducing into evidence any client statement made at mediation authorizing the attorney to sign the settlement agreement.  This mediation “statutory scheme . . . unqualifiedly bars disclosure of communications made during mediation absent an express statutory exception.”  Provost v. Regents of University of California (2011) 201 Cal. App. 4th 1289, 1302 citing Foxgate Homeowners’ Association v. Bramalea California, Inc. (2001) 26 Cal. 4th 1, 15. “The Legislature decided that the encouragement of mediation to resolve disputes requires broad protection for the confidentiality of communications exchanged in relation to that process, even where this protection may sometimes result in the unavailability of valuable civil evidence.”  Provost v. Regents of University of California (2011) supra at 1302-1303 (citing Cassel v. Superior Court (2011) 51 Cal. 4th 113, 136).

Attorneys who proceed to sign settlement agreements on behalf of their clients at mediation may want to give careful consideration as to whether or not their client is likely to claim that they didn’t authorize their attorney to sign the agreement.  It’s not presently clear exactly how such attorneys may be able to defend themselves in State Bar proceedings should the client lodge a complaint with the State Bar.

 After litigating for more than 30 years, Robert Jacobs now mediates challenging real estate, business, construction, personal injury, trust and probate cases. In 2020 he served as Chair of the Contra Costa County Bar Association ADR section and Co-Chair of the Alameda County Bar Association ADR section.  Since 2017 he has served as one of the update authors for the CEB treatise Real Property Remedies and Damages and is a co-author of CEB Practitioner (Real Property). He holds an AV rating from Martindale-Hubbell and is a designated SuperLawyer. Mr. Jacobs received his mediator training from Northwestern University in Chicago, Illinois.  

The Continuance Fee

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Near the end of my second year of law school I found myself in summer internship interviews. One of these interviews involved my brother’s old High School buddy who had gone to work for the state Attorney General’s office. I remember meeting with him at the State Capitol building. I was impressed with the formality – after all, this is where the Law was made; this was where the Law was enforced. It all seemed so official.

Near the end of our meeting my interviewer surprised me. He said simply, “Law is a business. I need to figure out a way to make more money.”

I was taken aback. This gentleman was in a government service job – and an important one. He was part of the governmental machine. It hadn’t occurred to me that public servants in important positions might be dissatisfied (to some degree) with their lot in life. And after spending so much time in law school talking about how the law worked, it surprised me to hear how money factored so directly into public services.

Now I’m here after more than 30 years in the law, and I have a far better understanding of what he was talking about. On occasion I’ve been known to say, “It all comes down to money” or “It’s all about the money.” That’s not always true – but it often is. It’s true for attorneys. It’s true for clients.

I’m also learning it’s true for mediation. If law is a business, then so is mediation. We may not always think of mediation that way. But mediators have expenses – just like everyone else. Some mediators may enjoy a pension or other income stream so payment for them may not be as pressing as with others. But most mediators expect to be paid for their services (except for some court programs, some Bar Association programs and certain community mediation programs).

There’s one aspect of the mediation business that has held my attention for some time: the “continuance fee.” Some years ago I had a friend who practiced personal injury law. One day he said, “I just don’t like it when I get charged a full fee for a mediation that didn’t happen.” I don’t have a problem with paying a mediator for their time – but I don’t like paying the full fee.” What he was talking about is what I call the “continuance fee.”

I first ran into this several years ago when I was engaging a mediator through a mediation service. The terms of the service provided that if a date was reserved and the mediation was canceled or postponed within a certain number of days of the scheduled mediation, then the entire fee would be forfeited and nothing would be returned.

This seemed to be a bit heavy handed. I called up the service, and they confirmed what the documentation said. If the mediation was canceled or postponed shortly before the mediation, then no refund would be forthcoming. I understood this was because the mediator had reserved time, and it was unlikely on short notice that a replacement mediation could be scheduled. The mediator (and the mediation service) would then “lose out” on the opportunity of generating income that day.

That seemed a bit troubling to me. What if the other side balked? What if somebody got sick? What if the mediation was postponed for reasons beyond my control?

Too bad. No exceptions. If the mediation doesn’t happen, no refund.

As mediator myself, I see the dynamics more clearly now. Law (and mediation) is a business – with ongoing expenses and a continuing need for revenue. Reserve a day for mediation and you commit resources. Lose out on that day, and the expenses continue (but the income doesn’t). Voila! The continuance fee.

But in reality how many mediations get canceled or continued? Some – but not many. How many get canceled or postponed for no good reason? Even fewer. So what’s a mediator (or a mediation service) to do?

Everybody gets to choose. Some airlines charge a penalty for changing your flight. Some don’t. Everybody chooses their own business policies. But there’s nothing set in stone that says a party has to give up their entire mediation deposit just because someone fell ill, ran into trouble, or couldn’t proceed on a certain day – whatever the reason.

Nobody wants to see a scheduled mediation get put over. But when the unexpected happens, sometimes it’s just unavoidable. In those situations counsel and their mediators get to figure out what happens next based on their agreements made beforehand.

The foregoing article is provided for general information purposes and should not be used in connection with any specific legal matter. Persons with legal issues or matters should consult competent legal counsel.

Robert B. Jacobs is an attorney, mediator and arbitrator with over 30 years of litigation experience. He mediates business, real estate, trust and probate cases. He is a designated Superlawyer and hold an AV rating with Martindale-Hubbell. He was the 2019-2020 chair of the ADR section of the Contra Costa County Bar Association and the co-chair of the ADR section of the Alameda County Bar Association. Reach him at [email protected]

The Mediator Who Wasn’t

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He came late.

The mediation was all set to begin at 9:30 a.m. But by 9:00 a.m. there was no sign of the mediator. The plaintiff was present with two attorneys. The defendant was present with two attorneys. Everything was all set to go – but no mediator.

At 9:00 a.m. I grew concerned. Where was the mediator? I called his office. No answer. I checked my email. Nothing. No text from him either.

What to do? I couldn’t reach him, had no idea where he was, assumed he was coming but didn’t know for sure. The parties had exchanged briefs a week before and held a pre-mediation phone conference. But now the mediation was ready to start without a mediator.

Finally at 9:20 a.m. I called another local mediator to see if he could serve as backup and do a mediation on 10 minutes’ notice. No luck – he was in joint session with a large group. If my mediator didn’t show up soon, I was going to have to do some quick thinking.

Finally, while I was on the phone with the other mediator’s office our mediator showed up – five minutes late. Why didn’t he call? Why didn’t he take my call when I tried to reach him earlier that morning?

We started the joint session and the mediator began asking questions. I was floored. He was asking questions about everything in my brief. After several minutes I realized he hadn’t read my brief – not at all. We then spent the next hour (in joint session) educating him about all of the points in my brief.

After he got his arms around the issues, the mediator started asking questions. He didn’t walk on eggshells. He dove right in and started asking pointed questions about sensitive issues –issues I’d just as soon not discuss in front of the other side. He drove right through the sensitive issues in my case and started making comments and observations in front of everybody in joint session.

Why would he do such a thing? Here we were at the start of the mediation and he was empowering the other side. How did he ever hope to convince them to take less when he was spending precious time in joint session driving roughshod over the weaker, more sensitive parts of my case and emboldening the plaintiff? In reality, I think he was pleased with himself that he had accurately identified the weaker parts of my case. I think he felt he was really getting somewhere. It all happened so fast that it was difficult to put an abrupt end to the joint session –I did not want to appear to be concerned about the questions he was asking. And then he did the same thing to the other side – probing the weaker parts of their case in joint session. I don’t think it even occurred to him that he was encouraging both sides to dig in to their respective positions.

We broke for caucus. Within an hour our mediator told me he felt the parties would shortly be at impasse. No surprise there. He had just spent the last hour in joint session entrenching the parties into their respective positions.

Why would a mediator do such a thing? This mediator came well-recommended. Why would he think such an approach would persuade either party to move off their respective positions? He was a seasoned attorney with decades of experience.

Effective mediators don’t encourage the parties to dig in. They use tools of risk, cost and uncertainty to help the parties see that a negotiated result gives them power over the outcome of a case. Skillful mediators look for hidden values and priorities that serve as powerful tools in helping parties re-evaluate their positions.

Our case didn’t settle. Would it have settled with a mediator who skillfully probed the client values and explored alternative options in caucus? I believe so. The day wasn’t entirely wasted because the parties learned more about each other’s “dig-in” points. But was it an optimal mediation? Not at all. With even a marginal degree of mediator skill, this case should have settled.

The upshot from this experience? We were reminded (once again) that a mediator’s skills are critical to mediation success.


The foregoing article is provided for general information purposes and should not be used in connection with any specific legal matter. Persons with legal issues or matters should consult competent legal counsel.

Robert B. Jacobs is a mediator and arbitrator in the San Francisco Bay Area. He mediates cases throughout California. Reach him at [email protected]

A Bad Deal With Good People

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I recently enlisted the help of a wonderful general contractor to help me out with a construction claim I’ve been dealing with. This contractor provided me with an insightful repair bid that helped me settle the case.

After the case was concluded I contacted this contractor to let him know the case had been settled. He took a moment to share with me an experience that has stayed with him for nearly thirty years. After the 1991 Oakland Hills fire this contractor was hired to repair some fire-damaged property. It wasn’t a big job, but it made a difference to him. After doing the work he approached the owner about getting paid. The owner looked him square in the eye and said, “You know, I just can’t see paying you.” And he didn’t.

It’s not that the contractor’s workmanship was bad or that he did something wrong. Rather, this was simply an opportunity for the owner to stiff the contractor because he knew a claim by the contractor for the unpaid amount would not be worth pursuing.

The contractor was enraged. He consulted an attorney and said he wanted to sue the owner. After listening to the facts, the attorney told him it wasn’t worth pursuing. He said that if this contractor wanted to press the issue then he would have to write the attorney a check up front for most of the unpaid amount. The attorney told the contractor that he couldn’t guarantee the contractor would get anything; he thought the contractor should walk away. This attorney then gave the contractor this sage advice: “It’s better to be in a bad deal with good people than a good deal with bad people.”

The contractor walked away from the money, but not from the advice. He’s used that advice during the past 30 years to turn down jobs that looked perfect in every way except for the vibes he got from some owners. This contractor says that this advice has served him well.

Experienced litigators and mediators know that the personalities of the parties will be key in shaping the eventual settlement and resolution of many disputes. If people are fair-minded, reasonable, and (relatively) willing to listen, then at mediation the risks of trial can be evaluated in the light of the costs of litigation and a settlement can presumably be reached. But if one side is trying to take a bite out of the other or shove them into a corner then a day of mediation can turn into a very long day indeed.

Parties to a business deal or a contract can often control the personalities involved in their transaction by choosing who they do business with. But as mediators we don’t have that luxury. We have to take the parties’ personalities as we find them. Sometimes the personalities match up well with the dispute. Sometimes they don’t. The genius and the magic of mediation rests in a mediator’s ability to size up a difficult situation involving imperfect people and then in short order identify (and to the extent possible to meet) the needs, values and objectives of the parties involved. When this happens, great results are possible. When it doesn’t, the parties’ dispute moves forward to another day of mediation or to a decision at trial or arbitration. But most mediators would agree that it’s easier to settle a difficult case with reasonable, fair-minded people than it is to settle even the most simple case with impossible people. My contractor’s timeless advice applies not only to business or real estate transactions, but also to settlement, mediation, and many, many other life activities.

The foregoing article is provided for general information purposes and should not be used in connection with any specific legal matter. Persons with legal issues or matters should consult competent legal counsel.

Robert B. Jacobs is a mediator and arbitrator in the San Francisco Bay Area. He mediates cases throughout California. Reach him at [email protected]

Who’s the Driver?

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Many years ago I participated in the mediation of a case with many defendants. The Plaintiffs were husband and wife who had sued nearly everybody they could touch. During the course of the litigation (and the mediation) it became clear the plaintiffs were on the war path. All of their claims against all the defendants lacked merit. But the Plaintiffs had filed suit, so we were all at mediation with our clients. We filled a large conference room.

We mediated all day long and came up with a complete settlement package that offered the Plaintiffs more than they were entitled to. The prospective costs of defense were real, and it was worthwhile to offer the plaintiffs a great settlement package so we could wrap the case up.

After the settlement package was presented, the Plaintiffs conferred with their attorney for a long time – and then rejected the offer. They wanted more money. The package had included money and other additional rights the Plaintiffs weren’t entitled to. But in the end they just wanted more money.

So the mediation failed. Everybody went home.

What went wrong? We had all mediated in good faith. Nobody left early. Everybody was cooperative. We had made good progress the entire day, and based on our discussions with the mediator it seemed like our final package was something that would be appealing to the Plaintiffs. But at the last minute they just dug in and refused to accept it. What went wrong?

The driver hadn’t attended the mediation.

Plaintiffs were husband and wife, but only one of them attended mediation. At the end of the day, the spouse who attended made a phone call to the other spouse. The other spouse (apparently) rejected the package. In actuality the non-attending spouse scuttled the mediation.

Who was the driver in that case? Was it the attorney? Or the spouse who attended mediation? No – it was the spouse who didn’t attend. Unfortunately the mediator had little (or no) access to this person – but this non-attending spouse was the single most important party in the entire mediation. They drove the entire process – and it failed because they refused to get on board.

It ultimately turned out fine for my client. We went to trial. We won and received an award of 100% of our attorneys fees. But there was still a time component and an emotional cost to the trial. It would have been better for everybody if had settled the case at mediation. But the driver wouldn’t get on board.

Mediation is about relationships, decisions, ego, emotion and “the moral high ground.” Some people are cooperative. Others are less so. Some people express strong emotions. Others express very little emotion. Sometimes parties won’t settle because they want more. And sometimes they don’t settle because they want the other side to get less. In complex or difficult mediations, an effective mediator must immediately identify the “drivers.” Early buy-in by these drivers is essential. If they don’t buy in, then they may walk out. And when parties or counsel walk out, mediations end quickly.

That’s not to say that the other participants aren’t important – they are. But cases only resolve when there’s full consensus. So at the start – and during the middle – and at the end of the mediation, the mediator must determine who the drivers are, and then must work overtime to find out their agendas, their concerns, their emotional “hot” buttons and what keeps them up at night about their case. Only when the mediator identifies and resolves these critical sub-issues can the mediation move forward to a successful conclusion.

As mediator I regularly work with parties and legal counsel to get cases resolved. Few people tell me up front what the hidden issues might be. I have to uncover them one at a time. Nobody tells me who the drivers are. I have to figure that out – and quickly.

What does that mean about effective mediators? They must be able to listen actively, clearly, and with discernment. They must be able to watch and understand people and what motivates them. Effective mediators are continually watching and evaluating the players: what spins them up, what calms them down, things they value and things they don’t. An effective mediator can turn on a dime (as needed) to get (insofar as possible) these drivers what they need so the case can settle. Sometimes that’s money; oftentimes it’s something other than money. Sometimes it’s what the money represents. People who feel validated and respected are in a far better position to settle a claim than those who feel abused, neglected, oppressed or manipulated. An effective mediator must be an expert at understanding people, putting them at ease, reassuring them and helping them feel like they’ve been recognized, respected, and are getting a good deal. Otherwise, in difficult cases where mediators don’t do this the mediator just spins their wheels like everyone else and the case goes nowhere.

The foregoing article is provided for general information purposes and should not be used in connection with any specific legal matter. Persons with legal issues or matters should consult competent legal counsel.

After litigating for more than 30 years, Robert B. Jacobs now mediates challenging real estate, business, construction, personal injury, trust and probate cases. He served in 2020 as the Chair of the Contra Costa County Bar Association ADR section and as the Co-Chair of the Alameda Count Bar Association ADR section. Since 2017 he has served as one of the update
authors for the CEB treatise Real Property Remedies and Damages; in 2021 he will be rewriting its chapter on ADR. He received his mediator training from Northwestern University in Chicago, Illinois.

Five Tips for Greater Success at Mediation

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It’s no secret that most lawsuits eventually settle. The uncertainty, cost and delay of litigation provide a powerful incentive for parties to voluntarily and informally resolve their claims.

Since most lawsuits are going to settle (either at mediation or otherwise), it’s important for counsel to determine when (and how) is the best time (and way) to settle. Settlements without mediation can be reached anytime. But these days settlement at mediation is definitely the “soup de jour.” Here are five tips from a seasoned mediator for greater success at mediation.

  1. Pick the Right Mediator.

The importance of this point can’t be overstated. Choose the right mediator and you may have moved the ball two-thirds of the way down the field. Choose the wrong mediator and you may find yourself picking up the pieces after a frustrating day of unsuccessful negotiation.

So who is the right mediator? It depends on your case. Look at your facts. Look at the law. And then look at the personalities involved. Since you’ve probably never met the opposing party, your own client will have to educate you about the other side (if they know them). If the client on the other side is an unknown quantity, then you’re left to make your own best guesses as to that side’s values, wants and needs.

Is the other side in love with their case (without a reasonable justification)? Then you may need a mediator with a wealth of trial experience — one who understands the law, the realities of trial and one who can educate the other side about the facts of life in the law.

Is the other side edgy, testy, accusatory, short-tempered? Then you may need a mediator who is calm and won’t easily take offense. A mediator who takes offense at emotional outbursts or hard-ball tactics by the other side may be unwilling to continue mediating to the point where resolution is possible. (The quickest way to end a mediation without resolution is for someone to leave or for the mediator to throw in the towel.)

Does the other side usually wring their hands or have trouble making decisions? Then you may need to choose a mediator who can assert some bravado to get them off the dime. Does the other side feel wronged, disrespected or disabused? Then you will want a mediator who is compassionate, understanding and patient. In such cases the mediator will need to help the other side feel that they’ve been heard and that their values and opinions matter.

  1. Get What You Need.

What are your client’s goals, values and objectives in this litigation? Sometimes it’s money. Sometimes it’s something else. Your client may never agree to settle this case unless their goals are sufficiently met. But before that can happen, you first have to know what your own client’s goals and values are. Talk to them. Find out what’s driving them.

Are there key facts or documents you don’t have yet? Consider putting over the mediation until you are able to get them – and then present them to the other side. You’ll get better mediation results when you can present a strong, persuasive case. Wordsmithing, demands and assertions alone aren’t enough – your case will be more persuasive when you have the facts and documents to back up your claims and defenses.

If there’s no real dispute about key facts or documents, then early mediation may be the best way to go – before the parties have ratcheted up their legal costs through months of discovery and motion practice.

  1. Get the Other Side What They Need.

Perspectives vary. Both sides often feel like they have a winning case. If the other side fails to appreciate the predicament they’re in then you’ll need to show them where they have a problem.

Marshal the necessary facts. If the case depends on witness testimony, consider getting witness statements. If it’s a technical case, consider getting an expert report. Sometimes an expert at mediation can provide technical information and a perspective the other side simply hasn’t identified, understood, appreciated or accepted. Expert opinions won’t be necessary in every case – but in the right case they can be invaluable.

If the other side doesn’t know about key facts or documents, consider developing (and sharing) those facts or documents with the other side in an appropriate way. If the other side doesn’t seem to understand the law, then use your brief to educate them about the key legal aspects of your case. If the client on the other side wants something your client controls, then discuss with your client in advance what kinds of terms your client will need or want in order to relinquish that control. If you are prepared to provide the other side with what they need, you’ll be in an excellent position to negotiate what your own client wants in order to resolve your case.

  1. Get the Mediator What They Need.

Mediator time is “up for grabs.” Nobody wants to spend more time than necessary on mediation briefs. But effective mediation briefs do more than just orient the mediator to the case. Use your mediation brief as an opportunity to present your facts in the best possible light (without overreaching). Let the mediator see the facts as you see them – and as you plan to present them at trial. This will help the mediator clearly discuss your facts with the other side – and can help the other side understand the strength of your case. Go ahead and cite key legal statutes and precedent. Citations to important case law can help your mediator point out the strengths of your case to the other side. I recently mediated a case where one of the briefs marched through the facts and the applicable law in great detail – and it became the controlling document for the entire mediation. We got the case settled due in significant part to the law that was clearly laid out in that party’s mediation brief.

Give your mediator some runway to work with. I try to read mediation briefs within a day after they are submitted. Oftentimes mediation briefs highlight additional facts, law or exhibits that may be important but were not included with the brief. If the mediator receives briefs early enough then the mediator can request that such documents be supplied to the mediator (and the other side) in advance of the mediation so that your case can be fully laid out prior to mediation day. This can significantly help the mediator in discussing your case with the other side. If the mediator only receives your brief a day or two prior to the mediation, then your brief can orient the mediator to the case – but there may be insufficient time for the mediator to request further facts or documents that may have been valuable in getting the case resolved.

If the case hinges on a contract or other key document then consider providing the mediator with actual copies of such documents as exhibits to the mediation brief. Those kinds of documents can often be invaluable in showing the mediator the strength of your case. A mediator who is convinced of the strength of your case is in a far superior position to discuss the strength of your position with the other side.

  1. Never Underestimate the Importance of Non-Monetary Considerations.

Judgments do some things really well – like awarding monetary damages. But judgments are sorely lacking in other departments – like acknowledgments, concessions, or rights and benefits involving third parties.

I recently mediated a case between family members. After we worked on the case for several hours I looked at one of the brothers and said “Some cases are about the money – and some aren’t. Is this case about the money or about what the money represents?” He acknowledged that the case was not about money but instead “what the money represents.”

What did he mean by that? Did he mean that money was unimportant? Not at all. Some cases are really about the money. But other times a case may be primarily about what is “represented” by the money – such as respect, fair treatment, an acknowledgment of a wrong, a wound, an inequity. Money is enormously important – not only because that’s how lawyers get paid, but also because it’s easily quantifiable – and when it comes to money it’s easy to tell whether recipients are being treated equally or not. Sometimes parties want substantial money in settlement primarily because they don’t want to feel like the other side got ahead of them (or got more than they did). These dynamics can be critical to some settlements. When lawyers and mediators see and understand these “non-monetary” considerations they are often able to put together settlements that would have been impossible otherwise.

Sum-up. Advance preparation can have a big effect on whether or not your case settles at mediation. Skillfully using available resources like mediation briefs, exhibits, timing and mediator selection can make all the difference on the success of your mediation.

Robert B. Jacobs is a mediator and arbitrator with over 30 years of business, real estate and construction law experience. He is the 2019-2020 chair of the ADR section of the Contra Costa County Bar Association and the 2020 co-chair of the ADR section of the Alameda County Bar Association. Reach him at [email protected]

The Future of Litigation

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This year I am serving as the chair of the ADR section of the Contra Costa County Bar Association.  This year I’m also serving as the co-chair of the ADR section of the Alameda County Bar Association.  This service places me in contact with lots of different people from all walks of life.

I recently had occasion to communicate with a recently retired judge who served for many years on the bench of one of the San Francisco Bay Area counties.  This judge has great insight into court restrictions caused by the COVID-19 situation.  He indicated that some attorneys expect that the court system will resume normal operations some time in the near future “when the COVID threat has passed.”  But that’s clearly not the case.  Because the courts have shut down for several months, a large number of pending criminal matters are waiting to be tried.  The defendants in many of these cases have not agreed to “waive time” which means these cases go straight to the top of the list once jury trial courtroom assignments can be made.  There are also apparently other criminal matters that have a high priority on the court’s docket and will almost certainly receive preference over civil matters.  This means that for perhaps two years – and maybe longer – there may be few, if any, civil courtrooms available for jury trials.

Doing the math isn’t hard.  Over the past several years our courts have been doing an admirable job of handling burgeoning calendars with limited resources.  But it’s clear that the courts have been just barely keeping up.  But all of that has changed now.  We have a three or four month backlog of criminal cases that will need to be immediately addressed once jury trials resume.  Plus, jury assembly and deliberation rooms aren’t set up for “social distancing.”  If jurors are seated in every third or fourth chair in juror assembly rooms, then the number of available jurors will be cut by something like half to two thirds.  Moreover, the jurors will need to have someplace to deliberate during trials where they can maintain “social distancing.”  It’s therefore entirely possible that instead of requiring one courtroom for each jury trial a total of two courtrooms may instead be needed so that a trial can be conducted in one courtroom and the jurors can be provided with a second courtroom they can use for deliberations.  Use of available courtrooms this way would mean that the courts are operating at something like two-thirds of their capacity so that instead of catching up on the backlog the system would just continue falling further and further behind.  Since criminal cases with no time waived have such a high priority on the court’s calendar, general civil jury trials (and possibly bench trials) may be put over for years. 

It’s not a pleasant prospect for anyone.  Court resources are already overloaded – and parties in litigation will now be presented with the prospect of substantial delays by a system already known for being slow.

In this context the value of Zoom ADR can’t be overstated.  Mediation has been a valuable way of resolving disputes for decades.  But now its appeal is even greater.  Instead of waiting for years (and years) for a courtroom, parties can take control of their dispute by exploring voluntary settlement through mediation.

With current COVID health concerns and social distancing requirements, in-person mediations remain difficult (or impossible).  The alternative is clearly mediation via Zoom (or by similar online platforms).

Let’s face it – the prospect of online mediation just doesn’t sound good.  It’s like crossing a video game with a lawsuit.  Doesn’t inspire confidence.  Seems like a bad idea all around.  Frankly, some attorneys just aren’t ready to go there.  Period.

The reality is actually quite different.  I did three mediations via Zoom over the last two weeks.  All of those cases settled.  It’s not that these were unique cases – they weren’t.  All of them involved different counsel and parties – and there was no overlap between any of them.  But the Zoom platform felt much the same to me as an in-person mediation.  People were focused – they were available – and they participated.  It’s possible to view in-person mediation as requiring parties to put more “skin in the game” due to the required travel and lack of an ability to engage in other activities during the day.  But I didn’t see any qualitative difference in my Zoom mediations.  People were at home; their families were sometimes in the background; sometimes they were including other activities in their day.  But people were still focused.  They were present in mind and spirit (which is essential for successful mediation).  They got it; they stayed focused and we got the job done (even though a couple of the mediations went late into the evening hours).  In short, the Zoom platform worked.

An alternative might be in-person mediation with masks.  Frankly, that’s going to be far less desirable than a Zoom mediation.  A mask creates a real, physical barrier between people.  It doesn’t lend itself at all to the connections that drive mediation.  It may sound surprising, but the human element necessary for mediation comes through well on Zoom.  As a mediator I’d far more prefer to mediate a case via Zoom than an in-person one with masks.  That’s not to say a “masked mediation” won’t be successful.  But with masks those connections which are so essential to trust, understanding and connection will be much harder to form.

My sense is that counsel who have tried mediation by Zoom will have a better opinion of the process than those who haven’t.  Following my Zoom mediations I’ve consistently received comments by counsel that the process operated better than they thought it would.  So while there’s still an ability to look to the future for in-person, maskless mediations, it’s entirely possible that for the foreseeable future the cases that get resolved at mediation will be by Zoom or a similar platform.

Robert B. Jacobs mediates business, real estate, construction, personal injury, probate and trust cases throughout California. He is a designated SuperLawyer. He holds an AV rating with Martindale Hubble and is serving as the chair of the Contra Costa County ADR section and the co-chair of the Alameda County ADR section. Reach him at [email protected]

The Younger Crowd

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My kids are all grown. They all have their own children. It’s been a few years since we had children living at home. But these days our yard is often strewn with plastic toys. After dinner we have lots of small bits of food on the floor and we once again have car seats in our car.

One of my daughters has come back to live with us – this time with her husband and three young children. With the current shelter-in-place orders, I’m spending a lot more time at home these days.

Frankly, I’d forgotten what it’s like. Life had gotten quiet over the past several years – and I’d grown accustomed to it. Things stay put where you leave them. No Cheerios on the floor. No sudden bangs from objects crashing to the floor. No raised voices of protest, objection or indignation.

I’d forgotten what it’s like. Then overnight everything was back as before. Except this time it’s different. After our own children grew up I went through mediator training. As a result I’ve developed a deeper sense of dispute resolution; of power and negotiation. I’ve now mediated scores of cases. And this time around I see the noise, the howling, the crying, and the frustration through new eyes. It’s not all bad. My new young citizens are learning the art of negotiation and dispute resolution first hand (and in a safe environment).

It’s a fascinating exercise. I see these young people (my grandchildren) using available tools to get what they want. Their actions are a study in power and control. What they lack in size they make up in volume, tenacity and energy. I sometimes see them weaponize their voices. If they feel they have no say in a matter they will level the playing field by using volume – instantly. Prized objects sometimes become the subject of carefully orchestrated negotiation. People (both children and adults) are played off each other. These children are unbelievably affectionate. But they are also becoming skilled negotiators. They use charm and their available power so interchangeably it’s almost like an alternating current. They are learning motivation techniques, value identification and how to push buttons. It’s truly a study in power (and human dynamics).

One of my grandchildren recently asked me for an item (but they asked me in an unpleasant tone). I responded that I’d be happy to comply with their request if they asked me nicely. The response was instant and rather than asking in a nice, pleasant tone of voice they turned to their father and made the same request.

Fascinating. I was ready, willing and able to give them what they wanted. But they wanted it on their own terms – and rather than submit to my terms (i.e. asking in a nice tone of voice) they tested their available power with another adult who might provide them with what they wanted (without having to submit to my terms). It was a complete microcosm of human relationships – and a study in power.

The outfall of all this has not escaped me. Sometimes I mediate probate or trust disputes where children have grown up. A mediator might think that child-era relationships in a grown family would have been superseded by intervening adult relationships – but this isn’t always so. Many of the family dynamics that existed decades ago when people were young are still fully present in these mediations. With my grandchildren under foot I sometimes feel like I’m watching relationships form in real time that will be played out over a lifetime.

Nothing is more fascinating than the people around us. It’s easy to think that children are lesser citizens because they lack power. Not so. I see them skillfully identify and use available human relationship tools every day. They act rationally, capably and intelligently (if we don’ squelch them because of own power). I recognize that their soft spots (sugar and television) may be more pronounced than with some adults – but that doesn’t detract from the brilliance of these young citizens. They are fully skilled and capable within their own orbits – even at two years old and watching them observe, capture and then shape their world is not only a study in power – it’s a study in joy.

Robert B. Jacobs mediates business, real estate, construction, personal injury, probate and trust cases throughout California. He is a designated SuperLawyer. He holds an AV rating with Martindale Hubble and is serving as the chair of the Contra Costa County ADR section and the co-chair of the Alameda County ADR section. Reach him at [email protected]

Mediation? No, Thank You.

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Some time ago I showed up at a trial call. The opposing party was a pro per defendant.

I had fully prepared the case for trial. My trial exhibits included a copy of the signed contract along with copies of all of the invoices supporting my breach of contract claim. The defendant had no real defense. I fully expected to receive a favorable judgment.

I walked into the courtroom and saw the defendant seated in the gallery waiting for the case to be called. The judge was not yet on the bench and there were several other people in the gallery. Instead of sitting on the opposite side of the courtroom, I walked over and sat right next to this pro per defendant. I wouldn’t have done that in every case, but I knew this defendant was personable and I didn’t sense any tension or hostility from him.

The defendant seemed overwhelmed and uneasy. I greeted him warmly and smiled at him. On a personal basis, I liked him and I let it show. Trial is an inherently stressful situation, and there was no need to make this case any more stressful than it already was.

I told him that I was sorry we had to go through all of this (and I meant it). I then told him that I could settle for a small discount on the amount owed and then we could just go home. He said he didn’t have the money to pay what was owed.

I believed him. However, this wasn’t a huge case, and I suspected he might have enough credit available on a credit card to pay what was owed. I told him I could accept credit card charges on my phone. We could go out in the hall, he could authorize a charge on his credit card, and we could be done. He said he just couldn’t do it. I told him “no problem” and said that we could just go through the trial. I would win; I would record an abstract of judgment; it would create a lien on his real estate and when he sold or refinanced his real estate, the judgment lien would get paid. No muss, no fuss. He said OK.

Two mediators were present in the courtroom. One of them stood up and announced that they were available to mediate cases set for trial that day. They asked if any of the parties were interested in mediating.

My pro per defendant raised his hand. The mediator looked at me and asked if I’d like to mediate.

I’ve served as a mediator for several years. I regularly participate in mediation, both as a mediator and as legal counsel. I know mediation is a highly effective settlement tool.

I looked straight back at the mediator. I answered his question about submitting the case to mediation and said, “No, I don’t think so.” The mediator sat down.

Shortly afterward the court called our case and asked us to exchange exhibits. I handed the pro per defendant my stack of exhibits. I asked for his and he replied that he didn’t have any. I said, “No problem.” He looked even more overwhelmed. He then said, “How about you give me a small discount and we settle?” He proposed a settlement figure that was acceptable and I agreed to it. The judge had not yet taken the bench. I told the clerk that we wanted to step out in the hall and talk settlement. She said, “Great,” and out we went.

The defendant gave me his credit card number. I ran a charge on my phone and it was approved. We were done. No muss, no fuss.

We went back into the courtroom. I let the clerk know we were done, and the case was to be dismissed. It was all over in less than ten minutes.

So why did this all happen this way? And why did I turn down an opportunity to mediate when I serve as a mediator all the time and I know how effective mediation is?

I could see what was happening. My pro per defendant was willing to mediate, not because he wanted to seek a resolution, but because he was trying to avoid the inevitable. He was looking for a way out, and mediation seemed like his last best chance to find one. But I knew that mediation that day would just chew up a lot of time and could even cause us to miss our trial opportunity. If that happened we would have to come back for trial another day. My pro per defendant just had to face the music and be done with it. I wasn’t against settlement – I preferred it. But my goal wasn’t to mediate; my goal was to settle.

The take-away? Mediation is an incredibly effective settlement tool – when used properly, with skill, and in the right context. But there’s no value in rote submission to mediation if it’s not the right tool, in the right circumstance, at the right time.

The foregoing article is provided for general information purposes and should not be used in connection with any specific legal matter. Persons with legal issues or matters should consult competent legal counsel.

Robert B. Jacobs is a mediator and arbitrator in the San Francisco Bay Area. He mediates cases throughout California. Reach him at [email protected]