This fall I attended one of the outdoor concerts by the Los Angeles Philharmonic Symphony at the Hollywood Bowl. It was a spectacular affair—beginning with the wonderful sounds of classical music and ending with a fantastic light show. The concert featured a local university marching band as well as a guest appearance from a world renowned cellist.
As I have mentioned quite a few times in my blogs, I mediate a lot of lemon law cases or cases filed under California’s Song-Beverly Consumer Warranty Act (Civ. Code section 1790 et seq. (“Act”)….p
Many mediations end in settlement at which point the parties draft a settlement agreement. California law provides a summary procedure by which the parties can enforce the settlement agreement if….
“From litigation to conflict resolution” describes what happens with most contested legal disputes; they tend to follow a trajectory from an adversarial to a more cooperative process. An aggrieved party starts with a desire to punish, or seek justice against, the opposition that they believe has wronged them. The accused party reacts defensively. Both sides tend to contest every assertion made against them. They create new grievances. They demand that the court sanction the other side.
The so-called “ten duel commandments” reveal that the whole ritual of dueling actually incorporates a system based on negotiation. In the song that lays out the commandments of dueling, note that they provide at least three opportunities to back away from going through with the contest. At the outset, the person challenged can avoid a duel by apologizing
As an attorney, I don’t get much satisfaction out of subjecting my own clients to a painful experience just to teach them a lesson. Therefore, for the majority of private disputes, I’d prefer to start off with a less destructive process, like negotiation or mediation. And if we have to litigate, I’d prefer to do so in a way that minimizes the pain for my clients and helps more their case toward resolution, rather than in a way that forces them to settle just to avoid experiencing more of the pain the lawsuit is causing them.
Since the initial demand is usually made only after lengthy discussion of the strengths and weaknesses of the case and the range of recoverable damages, it is even more perplexing that it bears no relationship to the recoverable damages in the case.
With some analysts predicting that business litigation will spawn billions of dollars in lawsuits because of service and product failures, businesses need alternatives to litigation, says Marc Pearl of the Information Technology Association of America, a nonprofit trade association of information technology professionals. “Mediation needs to be encouraged, not litigation,” said Pearl, general counsel and senior vice president of government affairs for the association.
According to an insider, the couple’s mediation is going nowhere fast: “the former couple has begun mediation and the Bush frontman is demanding the marital home as part of the settlement!”
The New Mexico Supreme Court declared the week of Oct. 11 as Mediation Week: “Mediation is a cooperative process in which a neutral person — a retired judge, a lawyer or anyone else trained as a mediator — helps the parties reach their own voluntary agreement.”
While insurance lawsuits involving claims directly between an insurance company and its policyholder make up a relatively small percentage of our courts dockets, cases triggering liability insurance from automobile accidents to securities class actions constitute a very large percentage of all cases before our courts.
Plaintiffs file lawsuits seeking “justice”. Defendants respond, stating they are seeking “justice” as well. Both come to mediation, seeking “justice”. When I am told this, that each side wants “justice”, I am not sure how to respond because I do not know exactly what that word means.