Alternative Dispute Resolution – Mediation, Arbitration, etc.

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Alternative Dispute Resolution (ADR) refers to various methods of resolving disputes other than through the court process. ADR includes mediation and arbitration. The Sonoma County attorneys provide such services.

Mediation is a process in which a neutral person facilitates communication between the parties to the dispute to assist them in reaching a mutually acceptable (settlement) agreement. California Evidence Code §1115(a). The core idea behind mediation is to promote reconciliation, settlement or compromise. A mediator is by definition a neutral person who conducts a mediation. California Evidence Code §1115(b). What takes place at mediation is confidential. California Evidence Code §1119.

Arbitration is a process whereby the parties to a dispute select an impartial person to decide their dispute. In California, a written agreement to submit an existing or future controversy to arbitration is valid, enforceable and irrevocable with only certain exceptions. California Code of Civil Procedure §1281. If a party to an arbitration agreement “jumps the gun” by filing a lawsuit first, the court in which the lawsuit is pending is required, upon a motion of a party, to stay the lawsuit until the arbitration is completed. California Code of Civil Procedure §1281.4. An arbitrator is a neutral who is selected jointly by the parties or appointed by the court when the parties or the arbitrators selected by the parties fail to select an arbitrator who is to be selected jointly by them. California Code of Civil Procedure §1280(d). The parties to an arbitration agreement can agree on a method of appointing an arbitrator and that method shall be followed. If for some reason, the parties can’t agree or that method can’t be followed, or an arbitrator who has been appointed fails to act, the court, on petition of a party to the arbitration, shall appoint an arbitrator.

Additionally, the parties to a dispute, may also stipulate to the appointment of temporary judge (judge pro tem) (California Rules of Court, Rule 2:831) by the trial court. The judge pro tem has the powers of a judge per California Code of Civil Procedure §177. The judge pro tem may be a retired judge or an experienced trial attorney. The court also allows very experienced trial attorneys to volunteer, with the agreement with the parties and their counsel, to try court and jury trials as a pro-tem judge. Michael G. Watters has presided over a number of cases as a pro-tem judge including a medical malpractice jury trial and has served as a Small Claims court judge in the Municipal Court prior to the court merger.

Although not considered to be a form of Alternative Dispute Resolution (because it is specifically supervised by the court), several weeks before a case is set to go to trial, there is a court-ordered Mandatory Settlement Conference (MSC), which takes place at the courthouse. The MSC is presided over either by a judicial officer or by two highly experienced attorneys who volunteer their time to the court and to the parties to try to help settle the case before trial. These are called Pro-Tem Settlement Conference Panelists. (All of the firm’s litigators volunteer as pro-tem settlement conference panelists for the Sonoma County Superior Court; Michael G. Watters also volunteers in other counties as well such as Marin).

Although the following programs don’t necessarily result in a resolution of the entire dispute, the Sonoma County courts have created a Discovery Facilitator Program to help the parties resolve discovery disputes as well as a Demurrer Facilitator Program to help resolve demurrers. Local attorneys volunteer their time to these programs. The firm’s litigators volunteer to help the court with these programs as well. The court can also appoint a Special Master, a Referee as well as a Discovery Referee to assist the court. See California Code of Civil Procedure §§638 and California Rules of Court, Rule 3.920). Michael G. Watters has been appointed several times in one or more of those roles in the past.

Over the years, various members of the firm have acted as arbitrators or mediators, either free-lance or through one of the recognized providers of ADR services. These include the American Arbitration Association (AAA). Michael G. Watters was on the AAA Commercial Arbitration Panel – San Francisco for decades and presided over many contractual arbitrations.

There are also other commercial and/or private mediation services available. Among the most well-known and well-respected commercial mediation services, is the AAA Law and Mediation Center of San Francisco. Michael G. Watters was among the first San Francisco Bay Area trial lawyers to be trained and appointed to the AAA mediation panel in 1990. He served for about 10 years and conducted more than 50 mediations.

Also, all the trial lawyers in the firm have considerable experience in representing individuals or business in mediation and/or arbitration, whether it be judicial arbitration, contractual arbitration, UM or UIM arbitration. Michael G. Watters has also acted as Kaiser party arbitrator on five occasions.

For many years now, written contracts contain specific provisions requiring parties to the contract to mediate and/or arbitrate disputes. Such contracts include employment agreements, financial institution customer account agreements, real estate purchase and sales agreements, health care contracts, construction contracts, etc. Usually the parties will attempt to mediate the dispute first. If they are unsuccessful, then they will proceed to binding arbitration. Some contracts have attorney fees provisions which require mediation first or there can be no award of attorney fees at arbitration. The contracts often specify who the ADR providers will be.

The arbitrator’s award can be turned into a judgment which can then be enforced as any other court judgment. California Code of Civil Procedure §1285.

Among the arguments in favor of arbitration is that arbitration is reportedly faster and less costly. The law also favors arbitration of disputes. However, there are some drawbacks to arbitration. For example, the arbitrators are not required to follow the rules of evidence. CCP §1282.2(d). The arbitrator does not have to follow the law. The testimony of a witness does not have to be given under oath unless one of the parties requests same. The arbitrator’s award will not be overturned except on very limited grounds such as corruption or fraud. California Code of Civil Procedure §1286.2. So the arbitration process has some risks. Additionally, contracts usually specify that the parties must share equally in the cost of the arbitration, including the cost of the arbitrator. This could get expensive.

This firm has a number of highly experienced attorneys in specific subject matter areas who are willing to act as mediators or arbitrators, such as John R. O’Brien (real estate and non-profits) and Daniel E. Davis (tax and business law).

The foregoing ADR methods are not to be confused with what is known as “judicial arbitration” which has been in effect in California since 1979. See California Code of Civil Procedure §1141.10 and California Rules of Court, Rules 3.810-3.830. The courts often use this procedure in smaller personal injury cases where the court determines from the case file that the likely damages will not exceed $50,000 and orders the parties into (judicial) arbitration. California Rules of Court, Rule 3.812. The parties then select an arbitrator from a list of approved arbitrators maintained by the court. The decision of the arbitrator in such cases is not binding if either party timely requests a so called “trial de novo” which means a new trial. CCP §1141.20 and California Rules of Court, Rule 3.826. The arbitrator’s award is then vacated as if it never existed. In many cases, the litigants are entitled to a jury trial as a matter of right based on state or U.S. Constitution. If either or both parties don’t like an award and demand a trial de novo, then the case will be set for trial. There are penalties if the result is not as good as the arbitrator’s award. California Rules of Court, Rule 3.826(d) and California Code of Civil Procedure §1141.21.

Michael G. Watters has served as a judicial arbitrator in Sonoma, Marin and Napa Counties and has handled at least 100 such arbitrations for the courts.

Michael G. Watters has been a number of Society of Professionals in Dispute Resolution (SPiDR) which merged with Association for Conflict Resolution (ACR). Michael G. Watters has been a member of ACR.

Although not strictly part of the ADR process, the legislature has mandated that certain disputes be arbitrated. Such disputes include Uninsured Motorist (UM) personal injury and wrongful death claims and Under Insured Motorist (UIM) personal injury and wrongful death claims. See California Insurance Code §11580.2.

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