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Using Mediation to Streamline the Litigation Process

July 12, 2015

The other night my wife and I watched the new Helen Mirren film, “Woman in Gold,” based on the true story of the recovery by Maria Altmann of the magnificent painting by Gustave Klimt of her Aunt Adele, which painting (and others) had been stolen from her family by the Nazis during the occupation of Austria.

The film was so interesting on so many levels, including: the life and times of enormously successful wealthy European Jewish families; the injustice and horror of the Nazi era; the relationship of Altmann’s lawyer to musician and composer Arnold Schoenberg; and the U.S. Supreme Court case that emanated from the dispute (Republic of Austria et al. v. Altmann, 541 U.S. 677 (2004).

Even so, the film captured my attention as a mediator.

In the film, following the Supreme Court’s decision on the retroactivity of the Foreign Sovereign Immunities Act of 1976 (28 U. S. C. § 1602 et seq) and the return of the case to the trial court (USDC, Cent. Dist. CA), lo and behold, a mediation takes place.

In the mediation, the representative for Austria refuses to negotiate for settlement less than full capitulation by Altmann.

Not willing to give up, Altmann’s attorney wisely offers an alternative:

Rather than settling on the main dispute, given such intransigence on the part of his opponent, Attorney Randy Schoenberg offers arbitration of the dispute in Austria as a solution, to which his client and the Austrian representative ultimately consent.

The arbitration shortcuts the protracted litigation in the District Court, saving time and money, and ultimately yields the return of the painting (and some others).

But the point is that the mediation streamlines the litigation process.

This is a result not to be overlooked.

Some cases cannot or will not settle at mediation. On the other hand, wise counsel may use the mediation forum to agree on procedural steps that will save the clients both time and money.

For instance, the mediation can be used to agree on discovery scheduling, or stipulations as to certain facts, or even an alternative forum for dispute resolution – like arbitration or an Expedited Jury Trial under Code of Civil Procedure §§ 630.01-630.10. See, http://www.courts.ca.gov/documents/ejt010info.pdf .

And, as to the Expedited Jury Trial process, above, the mediation can even be used to negotiate, for later use, a “High/Low Agreement” that “specifies a minimum amount of damages that a plaintiff is guaranteed to receive from the defendant, and a maximum amount of damages that the defendant will be liable for, regardless of the ultimate verdict returned by the jury.” C.C.P. § 630.01 (b).

This is a great tool where otherwise there might be impasse and no settlement at all.

Accordingly, the mediation need not end without any agreement: the parties can utilize the mediation process to streamline the otherwise time-consuming, costly, and unpredictable litigation in which they are embroiled.

***

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

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