Scott S. Markus, Esq.

markus@agreement.com

SCOTT SLATER MARKUS IS WIDELY KNOWN AS THE LAST PERSON TO GIVE UP ON A SETTLEMENT.

HE MEDIATES SERIOUS PERSONAL INJURY, EMPLOYMENT, PROFESSIONAL LIABILITY, REAL PROPERTY AND CONSTRUCTION MATTERS.

Lawyers Belong In The Mediation Session
Apr 18, 1995
by Scott S. Markus

Carl A. Mounteer's article "Rx for Civil Justice" (April 6) makes some interesting proposals for reforming our civil justice system. As a professional neutral who has mediated hundreds of disputes throughout California and adjoining states, I strongly agree that mediation is generally an efficient, cost-effective method of resolving legal disputes.

However, mediation within 30 days after the defendant files an answer may be premature. For mediation to be effective, all parties should participate and should have enough information to negotiate intelligently. Accordingly, any reform legislation mandating mediation should provide for the case to be at issue long enough for all parties, including cross-defendants, to appear and conduct minimal discovery.

Fortunately, counsel generally obtain about 80 percent of the information necessary to try a case through 20 percent of the discovery (and then use the remaining 80 percent of the discovery to obtain the other 20 percent of the information). In most cases, 80 percent will be enough information to negotiate intelligently.

If one or more counsel are competitive negotiators, it is naive to believe that the other counsel will always be given enough information to negotiate intelligently without conducting any discovery. In that regard, lawyers who "hide the ball" before and during mediation will normally be very frustrated by the process.

On the other hand, if all counsel in a dispute are even semi-cooperative rather than completely competitive negotiators, there is less need for formal discovery. Rather, the parties will exchange information informally in an effort to educate each other regarding the relative merits of the dispute.

Accordingly, mediation might be required, absent good cause shown, within 90 days of the case being at issue as to all parties. Discovery during that 90-day period might be limited, again, absent good cause shown, in accordance with Code of Civil Procedure Sections 90 et seq. (Economic Litigation for Municipal and Justice Courts) - basically, a document exchange and one deposition per party.

Mr. Mounteer also suggests that "[l]awyers would not be allowed in the mediation session." Generally speaking, excluding lawyers is imprudent.

The vast majority of mediations to resolve legal disputes center around positional bargaining - that is, the facilitated exchange of objective (usually monetary) demands and offers until an agreement is reached. With some limited exceptions, lay persons do not have the ability to evaluate their nonsettlement alternatives in terms of the potential range of outcomes and the transactional cost (money, time and stress) of obtaining the uncertain outcome. Hence, the unrepresented party is generally unable to weigh the propriety of a settlement offer or demand. Would a patient opt for surgery under a general anesthetic without a physician's advice (and maybe even a second opinion)?

A small percentage of negotiations to resolve legal disputes center around interest-based bargaining - that is, identifying the subjective interests underlying the parties' positions and seeking to satisfy those interests. In those cases, the mediator may not require any legal training or experience and the parties may not require any legal advice at the mediation.

In fact, most negotiations involve both positional and interest-based bargaining, with the former aspect predominating over the latter aspect. Therefore, it is a very good idea for both the lawyer and the client to participate in the mediation.

Scott S. Markus
San Diego

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