Fear of the Unknown

It may sound like common sense but on a frequent basis, as a mediator, I find that the real issue driving a case to trial is when one of the parties does not understand the law or the legal process.? Any one of us has experienced our brain shutting down when faced with the fear of the unknown.? This newsletter will walk you through several red flags that I have faced as I work with parties to settle their dispute.?? This is the first part of a two-part series on educating the parties to avoid the fear of the unknown.

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NO KNOWLEDGE OF THE LAW OR THE PROCESS – WHO IS AT FAULT

I frequently find that at least one of the parties appearing before me has little or no experience in being sued or simply being a party to a lawsuit.? Ultimately, it is the attorney’s obligation to make sure that they stop and take the time to educate their clients as to the law and the legal process.? However, the clients need to also assume responsibility and to step up, take the time as consumers, and demand the attention, training, and education needed to understand their rights and what they are about to navigate.? Yes, being educated takes time and time is money (that is attorney’s fees).? However, the fees to educate the client as to the law and the legal process they are about to navigate is money well spent.?

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Few things can be guaranteed in litigation, but I guarantee you that spending money on being educated on the law and the legal process will be the best investment that a client can make.? As a client, if you feel that your attorney is not taking the time that you need, then you need to confront them or get a new attorney.? The attorney and the client should be a team.? The client has lived the facts and the attorney will never be able to spend the number of hours that the client has lived.? At the same time, the attorney speaks a foreign language (legalese) and the client has hired the attorney to translate the law and the process from legalese to the language that a real person can understand.? Knowledge is empowering.? At a minimum knowledge reduces fear, panic, and allows the client to navigate the hearing, deposition, mediation, or trial calmly, with logic, flexibility and confidence.

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MEDIATION VS ARBITRATION

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As a full-time neutral, I frequently discover that not only the clients but occasionally attorneys do not understand the difference between Mediation and Arbitration.? The simplest way that I explain the difference to the parties appearing before me in mediation, is that as a mediator the only power that I have is to keep parties talking.? As an arbitrator, my powers start with listening and then keeping the parties talking to encourage them to carve out a settlement but, when the talking stops, my power as an arbitrator includes the ability to make a decision as to the disputed issues.?

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Mediation is a very unique creature!? ?Under the California Evidence Code, nothing said during any part of the mediation can be used at a subsequent trial. This is frequently referred to as “the mediation privilege”.? ?If a statement or document that was a part of the mediation is ever used or mentioned by one party against another at trial, it is the basis for a mistrial. ??In that case, the trial stops, a mistrial is declared, and the unhappy trial judge will let you know how you have to start all over again with a new trial date.? ?Attorney’s fees and sanctions are also within the discretion of the now unhappy trial judge.? Please also keep in mind that the “Mediation Privilege” does not apply to Mandatory Settlement Conferences (MSCs).? ?I sit as a MSC Officer in complex litigation cases that are one to two weeks away from going to trial.? At least once a month, I have to remind counsel that an MSC is not covered by the mediation privilege and California Evidence Code Sections 1152, 1118, and 1115.? As a Judge Pro Tem of the San Francisco Superior Court my experience is that the Court looks at what was exchanged in the MSC as settlement discussions and the only time that I have had matters discussed in an MSC come up later was when there was an issue of one of the parties thwarting settlement and the Court was considering an award of attorney’s fees or sanctions.? Therefore, make sure you read the Court’s local rules before your MSC.

Contact Our Experienced Mediator Today at the Mediation Offices of Martin F. Triano

Mediation can be a valuable tool for resolving legal disputes outside of the courtroom. While mediators are generally not allowed to give legal advice, they can provide important information to help the parties reach a mutually satisfactory agreement. If you are facing a legal dispute and considering mediation, the?Mediation Offices of Martin F. Triano?can help. Our experienced mediators understand the complexities of legal disputes and can guide you through the process, working closely with attorneys to ensure that all legal issues are properly addressed. We are committed to helping people find a resolution that works for everyone involved, and we always prioritize their needs and interests.?

Litigation is factual intensive and turns on the applicable law. This newsletter is meant to provide a general education of navigating the mediation process and is not replace the individual tailored legal advice one needs when you find yourself immersed in a lawsuit.

Don’t let a legal dispute consume your time and resources. Contact the Mediation Offices of Martin F. Triano today at (510) 548-8081 or by email at [email protected]