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Reminder: Evid. C. § 1129 operative January 1, 2019

This is a reminder to my attorney friends and colleagues that a new disclosure requirement re mediation confidentiality, with written acknowledgment by the attorney’s client(s), comes into effect on January 1, 2019, pursuant to new Evidence Code section 1129.

A compliant form of “Mediation Disclosure Notification and Acknowledgment” is provided in subparagraph (d) of the new code section as more particularly shown in my September 12, 2018, post .

While I have your attention, let me also take this opportunity to wish my colleagues and friends a happy, healthy and productive 2019 and best wishes for the holiday season that is upon us.

***

David I. Karp is a full time independent mediator of real estate and business disputes in Southern California. His website is at http://karpmediation.com .

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Lies or Just Other Truths?

We have seen many reports in the news that assert that a particular high governmental official repeatedly proffers factual inaccuracies, outright falsehoods, inconsistent or contradictory assertions, unsupported accusations, denials, and so much more.

One writer called him “untethered to truth.” See, e.g., https://www.usatoday.com/story/news/politics/2018/04/12/comey-book-donald-trump/512683002/

Might we see someone “untethered to truth” in a mediation?

Certainly, but not so often I think, although I do hear people in mediation say from time to time that “the other person is lying.”

My response, however, usually goes something like this:

“Not necessarily. I believe that each person has his or own truth based on that person’s perspectives, understandings, observations, biases, and so forth. They may just see things differently from you. In fact, there is even a jury instruction that acknowledges that two people may see the same event but remember it differently, which does not necessarily mean they are lying.” [See, California Civil Jury Instructions (CACI) (2017) 5003, available at https://www.justia.com/trials-litigation/docs/caci/5000/5003/ ].

I also say sometimes that “I believe everything everyone says, but I also disbelieve everything everyone says as well,” knowing that there ARE some people who intentionally lie.

For me as a neutral, it is not my place to call a person a liar and ultimately it does not matter what I think. The parties control the outcome of mediation and they make their own decisions based upon their own perceptions, whatever they are.

Of course, there are times when I have shown some documentary evidence from the other side that contradicts, changes or corrects a situation or understanding. And that may help a person to reorient himself or herself to a new view. But sometimes not. There is this phenomenon called “Assimilation Bias [which is the] tendency of individuals to see or hear only that information that favors their position…. Victims of assimilation bias behave as if adverse information was never presented to them.” https://www.mediate.com/articles/PR_CognitiveBarriers.cfm

It IS my role as mediator, I think, to help people to understand that everyone’s decision making process is dependent upon one’s own perceptions of the truth rather than on “The Truth” in the abstract sense.

Fortunately, when disputants are represented by counsel, there are a few safeguards to intentional lying which are set forth in the newly adopted California Rules of Professional Conduct for attorneys.

Rule 3.1(a) says [the asterisk represents a defined term in the rules]:

(a) A lawyer shall not:
(1) bring or continue an action, conduct a defense, assert a position in litigation, or take an appeal, without probable cause and for the purpose of harassing or maliciously injuring any person;* or
(2) present a claim or defense in litigation that is not warranted under existing law, unless it can be supported by a good faith argument for an extension, modification, or reversal of the existing law.

Rule 3.4(c) says:

A lawyer shall not:

(c) falsify evidence, counsel or assist a witness to testify falsely, or offer an inducement to a witness that is prohibited by law;

Rule 4.1 (a) says:

In the course of representing a client a lawyer shall not knowingly:*
(a) make a false statement of material fact or law to a third person;* or
(b) fail to disclose a material fact to a third person* when disclosure is necessary to avoid assisting a criminal or fraudulent* act by a client, unless disclosure is prohibited [by other rules of client confidentiality.]

On the other hand, Comment [2] to Rule 4.1 seems to undermine the lawyer’s requirement to be truthful at least to some extent. It says this:

[2] This rule refers to statements of fact. Whether a particular statement should be regarded as one of fact can depend on the circumstances. For example, in negotiation, certain types of statements ordinarily are not taken as statements of material fact. Estimates of price or value placed on the subject of a transaction and a party’s intentions as to an acceptable settlement of a claim are ordinarily in this category, and so is the existence of an undisclosed principal except where nondisclosure of the principal would constitute fraud.*

So truth can be elusive in mediation, although the stories of various disputants are usually reconcilable ultimately. And often, the REAL truth [the EMES according to those who speak Yiddish] usually comes out as the parties figuratively move towards one another in resolution and/or reconciliation as they find common ground and settle their disputes.

***

David I. Karp is a full time independent mediator of real estate and business disputes in Southern California. His website is at http://karpmediation.com .

Mediation Fees to Remain the Same for 2019

FOR IMMEDIATE RELEASE [advertisement*]:

Van Nuys, CA – December 6, 2018 – David I. Karp will maintain his existing fee structure into 2019 for private mediation as he begins his 15th year of full time independent mediation practice in Southern California focusing primarily on the resolution of real estate and business disputes.  Fees will not be increased.

Karp’s fee structure is described on the “about us” page of his website at https://www.karpmediation.com/about-us/ at the bottom of the page.

“Now in my 40th year in the legal profession and recognizing the enormous expense of litigation, my goal is to help people to resolve their disputes with moderate pricing,” Mr. Karp says. “I am not competing with the larger provider companies for the big cases,” he adds, matching his pricing to the needs of the legal community in more moderate matters.

Although practicing independently, Mr. Karp is also on the mediation panels of, and accepts referrals from, the CALIFORNIA ASSOCIATION OF REALTORS® Real Estate Mediation Center for Consumers, the Mediation Center of Los Angeles (one of two “resource list” vendors for the Los Angeles Superior Court), and the Appellate Mediation Panel of the California Court of Appeal, Second District.

Mr. Karp’s real estate background and experience can be seen from the types of cases he accepts for mediation, as shown on his website at https://www.karpmediation.com/real-estate-disputes/ .

As in prior years, Mr. Karp has earned for 2019 the Martindale-Hubbell® AV Preeminent™ Rating, the highest possible rating for legal ability and ethical standards.

He is available for mediation at the offices of counsel if agreed or will provide a neutral location as necessary, the latter with a slight surcharge. Calendaring information is available on his website at https://www.karpmediation.com/calendaring/ .

Contact:
David I. Karp, Mediation Services
Mediation of Real Estate and Business Disputes
6311 Van Nuys Blvd. #409, Van Nuys, CA 91401
818-515-9361 voice; 818-781-7733 fax
http://karpmediation.com
###

*This press release is not intended to be a solicitation of legal services; David I. Karp is an attorney but does not practice law, only mediation. This press release is intended to reach licensed attorneys, family members, and others with a prior professional relationship with David I. Karp, although others might receive it because it is on the internet.  Nevertheless, some may consider this an “Advertisement” and it is so designated to the extent required, if at all, by the California Rules of Professional Conduct, if applicable.

2018 Donations at Thanksgiving Time for Important Reasons

As you might know from prior posts in years past, it has become my custom and practice to make certain annual charitable donations just before Thanksgiving.

It is a good time to use my funds charitably for the (incidental) purpose of honoring friends, family, and business associates in lieu of sending commercial holiday greeting cards that end up in the recycling bin.

But there is always a more important purpose:

I believe it is everyone’s personal responsibility, including my own, to help “to repair the world” [Tikkun Olam] as and when we can do so and particularly when the need arises.

This year, we have had devastating news practically in our own backyard very recently, initially with the mass shooting of innocent victims at the Borderline Bar and Grill in Thousands Oaks, California, and then with the catastrophic wildfires of the so-called “Woolsey Fire” also in the same area and beyond.

In addition, our larger Jewish community is still reeling from the recent hate-filled shooting at the Tree of Life Synagogue in Pittsburgh.

Consequently, the decision on where to send my donations this year was simple:

First, to the ADL, which claims to be “the foremost authority on extremism, terrorism and hate, both foreign and domestic” and which “strategically monitors, exposes and disrupts extremist threats—on the internet and on the ground” (See, https://www.adl.org/what-we-do/combat-hate/extremism-terrorism-bigotry ); and

Second, to the California Community Foundation’s Wildfire Relief Fund, which “supports intermediate and long-term recovery efforts for major California wildfires, as well as preparedness efforts” (See, https://www.calfund.org/wildfire-relief-fund/ ).

To me, it is never a choice of whether or not to give at this time; it is only a choice of where to give and how much.

I encourage you, too, to take responsibility to help repair the world and to join me in making your charitable donation(s) at this time (so far as you can do so) to whomever and in whatever amount.

As the good book says: “Whoever saves a life, it is considered as if he saved an entire world” or something like that.

***

David I. Karp is a full time independent mediator of real estate and business disputes in Southern California. His website is at http://karpmediation.com .

New California State Bar Rules Addressed to Attorney-Mediators

On November 1, 2018, a new set of State Bar Rules of Professional Conduct will go into effect. Following are two specifically addressed to attorneys who are mediators [words followed by an asterisk are defined terms, see Rule 1.0.1], see http://www.calbar.ca.gov/Attorneys/Conduct-Discipline/Rules/Rules-of-Professional-Conduct/New-Rules-of-Professional-Conduct :

Rule 2.4 Lawyer as Third-Party Neutral

(a) A lawyer serves as a third-party neutral when the lawyer assists two or more persons* who are not clients of the lawyer to reach a resolution of a dispute, or other matter, that has arisen between them. Service as a third-party neutral may include service as an arbitrator, a mediator or in such other capacity as will enable the lawyer to assist the parties to resolve the matter.

(b) A lawyer serving as a third-party neutral shall inform unrepresented parties that the lawyer is not representing them. When the lawyer knows* or reasonably should know* that a party does not understand the lawyer’s role in the matter, the lawyer shall explain the difference between the lawyer’s role as a third-party neutral and a lawyer’s role as one who represents a client.

Rule 1.12 Former Judge, Arbitrator, Mediator or Other Third-Party
Neutral

(a) Except as stated in paragraph (d), a lawyer shall not represent anyone in connection with a matter in which the lawyer participated personally and substantially as a judge or other adjudicative officer, judicial staff attorney or law clerk to such a person* or as an arbitrator, mediator, or other third-party neutral, unless all parties to the proceeding give informed written consent.*

(b) A lawyer shall not seek employment from any person* who is involved as a party or as lawyer for a party, or with a law firm* for a party, in a matter in which the lawyer is participating personally and substantially as a judge or other adjudicative officer or as an arbitrator, mediator, or other third party neutral. A lawyer serving as a judicial staff attorney or law clerk to a judge or other adjudicative officer may seek employment from a party, or with a lawyer or a law firm* for a party, in a matter in which the staff attorney or clerk is participating personally and substantially, but only with the approval of the court.

(c) If a lawyer is prohibited from representation by paragraph (a), other lawyers in a firm* with which that lawyer is associated may knowingly* undertake or continue representation in the matter only if:

(1) the prohibition does not arise from the lawyer’s service as a mediator or settlement judge;

(2) the prohibited lawyer is timely screened* from any participation in the matter and is apportioned no part of the fee therefrom; and

(3) written* notice is promptly given to the parties and any appropriate tribunal* to enable them to ascertain compliance with the provisions of this rule.

(d) An arbitrator selected as a partisan of a party in a multimember arbitration panel is not prohibited from subsequently representing that party.

These new rules focus on important concepts including the lawyer-client relationship (of which there is none between mediators and participants in mediation) as well as on the avoidance of conflicts of interest (which has always been central to mediation practice). They are new to California’s Rules of Professional Conduct and do not have prior counterparts. On the other hand, they are common sense rules by which I and probably most of my colleagues who are professional mediators have naturally conducted ourselves previously.

***
David I. Karp is a full time independent mediator of real estate and business disputes in Southern California. His website is at http://karpmediation.com .

Fear and Timing: Both are Motivators for Settlement

I had occasion the other day to think about Norman Rockwell’s depictions of Franklin Delano Roosevelt’s Four Freedoms: Freedom of Speech, Freedom of Worship, Freedom from Want, and Freedom from Fear. https://rockwellfourfreedoms.org/ . I did so because I was writing an article for my Masonic Lodge’s newsletter for November and referenced them in regard to Thanksgiving. (Freedom from Want shows an American family at the Thanksgiving dinner table with the hostess, maybe Grandma, presenting a large cooked turkey before carving.)

In preparation for this post, I looked again at Rockwell’s pictures, and especially Freedom from Fear. It shows Mom and Dad tucking their sleeping children into bed. Perhaps the image suggests safety, security, contentment, and the like, in other words the opposite of fear.

I have come to believe that fear is one of the great motivators of settlement in mediation although such motivation hinges on the timing of the negotiation as well. (Apparently, our President also believes that fear is a great motivator too. All one has to do is Google the words “fear” and “motivator” followed by his last name and one will find many interesting references. But I digress.)

Here is the role I believe fear takes in mediations that leads to settlement oftentimes:

People fear the uncertainty of outcome. No one can predict with certainty who will win, who will lose, how long it will take, what will be the toll, and so forth. Consequently, people may choose to settle to create certainty from uncertainty. One litigant told me he would lose a lot less sleep this way.

People fear financial ruin. Litigation is expensive regardless of outcome. After all, it was Voltaire who reportedly said: “I was never ruined but twice: once when I lost a lawsuit, and once when I won one.” See, Roston, L. (1994). Leo Roston’s Carnival of Wit: From Aristotle to Groucho Marx. New York, NY: The Dutton Group, p. 273. See also, https://karpmediation.wordpress.com/2016/07/02/voltaire-was-right-self-preservation-is-an-underlying-interest-in-settlement/

In one recent mediation, the claim was for breach of contract but there was no attorneys’ fees clause entitling the prevailing party to an award for the recovery of fees and costs expended. The parties realized that the case was more expensive to try than to settle and utilized the value of the attorney fees to settle – the plaintiff discounting the claim by how much it would cost, and the defendant agreeing to use the money for settlement that she would otherwise have been charged for the trial of the matter.

People fear loss of status or reputation. In another recent mediation, defendants acknowledged the risk to their business reputation as a consequence of either an adverse judgment or negative publicity and realized that the privacy of a mediated settlement would guard against those kinds of consequences.

Certainly, there are additional fears, but now, let’s talk about timing.

Timing is everything. People fear perceived danger more intensely when it is in closer proximity. The same is true in the negotiation.

In one recent case, a pre-litigation mediation took place because the parties’ contract required the mediation, and the opportunity to receive an award of prevailing party attorney fees was dependent upon the occurrence of the mediation. There, the parties were somewhat fearful of the cost and expense of pursuing or defending the filing of an arbitration or lawsuit. However, the outcome of the dispute was far in the future, too far away in time for them to be nervous about. This was a fairly short mediation and the dispute did not resolve then.

On the other hand, in another recent case, the trial date was about 120 days away and the lawyers had already given their clients their fee estimates and assessments for trial. That mediation took longer, almost all day, but the parties finally realized what they were facing sooner rather than later and chose to settle.

And then there was the recent short-notice mediation, scheduled to take place within only a few days of contacting the mediator (me), with a looming trial date only a very few weeks away. The parties knew going in that they needed to settle or face the consequences imminently, and they settled.

So, as it appears, a sense of fear of whatever kind may drive the settlement, but it depends sometimes on how imminently the perceived harm will materialize in relation to the timing of the mediation.

***
David I. Karp is a full time independent mediator of real estate and business disputes in Southern California. His website is at http://karpmediation.com .

Written Disclosure by Attorney About Mediation Confidentiality, and Signed Acknowledgment by Client, Signed Into Law.

On September 11, 2018, Governor Brown signed into law Senate Bill No. 954 amending Evidence Code § 1122 and adding Evidence Code § 1129 regarding mediation confidentiality.

The Bill has the effect of requiring attorneys participating with clients in mediation to provide the client with a written disclosure about mediation confidentiality and to have the clients sign to acknowledge the same.

New Evidence Code § 1129 gives the required disclosure language as follows [see, http://leginfo.legislature.ca.gov/faces/billCompareClient.xhtml?bill_id=201720180SB954 ]:

Mediation Disclosure Notification and Acknowledgment

To promote communication in mediation, California law generally makes mediation a confidential process. California’s mediation confidentiality laws are laid out in Sections 703.5 and 1115 to 1129, inclusive, of the Evidence Code. Those laws establish the confidentiality of mediation and limit the disclosure, admissibility, and a court’s consideration of communications, writings, and conduct in connection with a mediation. In general, those laws mean the following:

• All communications, negotiations, or settlement offers in the course of a mediation must remain confidential.

• Statements made and writings prepared in connection with a mediation are not admissible or subject to discovery or compelled disclosure in noncriminal proceedings.

• A mediator’s report, opinion, recommendation, or finding about what occurred in a mediation may not be submitted to or considered by a court or another adjudicative body.

• A mediator cannot testify in any subsequent civil proceeding about any communication or conduct occurring at, or in connection with, a mediation.

This means that all communications between you and your attorney made in preparation for a mediation, or during a mediation, are confidential and cannot be disclosed or used (except in extremely limited circumstances), even if you later decide to sue your attorney for malpractice because of something that happens during the mediation.

I, _____________ [Name of Client], understand that, unless all participants agree otherwise, no oral or written communication made during a mediation, or in preparation for a mediation, including communications between me and my attorney, can be used as evidence in any subsequent noncriminal legal action including an action against my attorney for malpractice or an ethical violation.

NOTE: This disclosure and signed acknowledgment does not limit your attorney’s potential liability to you for professional malpractice, or prevent you from (1) reporting any professional misconduct by your attorney to the State Bar of California or (2) cooperating with any disciplinary investigation or criminal prosecution of your attorney.
[Name of Client] [Date signed]
[Name of Attorney] [Date signed]

I have been reliably informed that the above changes go into effect on January 1, 2019, pursuant to Govt. Code § 9600.

***

David I. Karp is a full time independent mediator of real estate and business disputes in Southern California. His website is at http://karpmediation.com .

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