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Negotiation News: Volume 2, Issue 4

Happy Holidays to all of you!

As the year winds down, I want to pass along my thanks to all of you who have entrusted the resolution of your cases to me this year.  It has been a successful and rewarding year, and I look forward to many more opportunities to mediate with you in 2014.

This month, I’m providing a few words on the recent California Appellate Court case of In re Marriage of Woolsey,  Case No. C067800 (CA Dist. 3 Ct. App., Oct. 22, 2013), which contains some useful language that applies to civil cases where Local Rules impose additional requirements for settlements not specified in the Code of Civil Procedure.

Next, I’m offering a few tips on pre-mediation preparation that I have found help to get the process started productively.

Next, as a reminder:  My fees are reduced for cases with amounts in controversy under $50,000.00 with one plaintiff and one defendant.

And finally: If you need last minute help, have a trial date around the corner, and need to take a shot at settlement, I can be available on short notice.  I’m also affiliated with Last Minute Mediations at 909.798.4524, and this is what we do.

In Re Marriage Of Woolsey: When Statutes and Local Rules Collide

In re Marriage of Woolsey Case No. C067800 (CA Dist. 3 Ct. App., Oct. 22, 2013) has some helpful language for civil cases, though it arose from a marriage dissolution in which the parties submitted their dispute to a local religious organization for resolution. When the ex-husband disputed the terms, the ex-wife sought to enforce the agreement under CCP 664.6.

The opinion is applicable to civil cases in its discussion of the apparent conflict between a local rule requiring notarization of settlement agreements (which the parties did not do) and CCP 664.6 which has no such requirement.  In this case, the parties entered into an out of court settlement agreement that they both signed

The Court found that the notarization requirement was invalid. In invalidating the Local Rule, the Court cited Government Code 68070(a), “Every court may make rules for its own government and the government of its officers not inconsistent with law or with the rules adopted and prescribed by the Judicial Council.” Further the court said “A rule of court may go beyond the provisions of a related statute only “so long as it reasonably furthers the statutory purpose” (Butterfield v. Butterfield, (1934) 1 Cal. 2d 227, 228.

THE TAKEAWAY: Woolsey stands for the proposition that settlement agreements that are otherwise enforceable under CCP 664.6 (and presumably under CCP 664.7 for construction defect actions) cannot be invalidated by a Local Rule that imposes additional requirements beyond those specified in the statute. Since the purpose of 664.6 (and 664.7) is to provide simple mechanisms to enforce settlement agreements (and thus promote settlements), where a local rule is inconsistent with those requirements by imposing more burdensome requirements, it may be held invalid.

HOW TO PUT YOUR CASE IN THE BEST POSITION TO SETTLE BEFORE THE MEDIATION

A few things that I have found to be helpful:

  • Exchange briefs if the case warrants it. Please make as much of the brief non-confidential as possible. If you need to make a portion confidential, please send it separately. The exchange of information before the session will only help both sides evaluate their cases and have the information they each need beforehand. And wherever possible, make sure that a demand (or offer) is made before the mediation.
  • Damages: Exchange the documents you are relying on to support a claim for damages that will be made in the mediation. If you are a Plaintiff in a personal injury case, the defense will need to have this info in its file so that they may properly evaluate the case and come prepared to discuss resolution with complete information. Likewise, the defense should either brief or highlight the impeachment documents so that they can be addressed either through exchange or strategically during the mediation.

Taking both of steps before the mediation session helps more often than not!

  • Reduced Fees for Smaller Cases

Just a reminder, I offer reduced fees for cases where the amount in controversy is under $50,000.00. Under the LASC ADR program, cases in which the claimed damages were $50,000.00 or less were eligible to be referred to court-ordered mediation. In an effort to continue to serve the parties who have cases with claimed damages under $50,000.00 and with one plaintiff and one defendant, my fees will be reduced for the duration of the mediation. My hourly rate on cases in which the claimed damages in dispute are above $50,000.00 remains the same. Please feel free to contact me to discuss at 818-616-8500 or .

  • Charity of the Month

A portion of mediation fees will be donated to the National Multiple Sclerosis Society. For more information, please visit the website of the National MS Society.

Whatever holiday you observe during the season, I wish you much happiness, peace, joy, and success in the New Year. I look forward to seeing you in mediation soon!

Sean E. Judge is a mediator with offices in Woodland Hills, CA. In his 21 years as a litigator, he has represented corporate and institutional clients, and individual litigants and small businesses, both as Plaintiffs and Defendants. He can be reached via telephone at 818-616-8500, at www.judgemediation.com or via email at .