Everyone is entitled to their own opinion,
but not their own facts.Senator Daniel Patrick Moynihan (1927-2003)
Durable settlements and wining trial strategies rest on a foundation of facts.
Your opinion of the opposing party will get you into the courtroom or the mediation conference room. But remember that the quality of your facts will determine the quality of your settlement or your litigation result, and plan accordingly.
War is not an independent phenomenon, but the continuation of politics by different means.
Karl (Carl) von Clausewitz (1780-1831)
The statement that 'war is a continuation of politics by other means' is important not because Clausewitz said it but because it reflects a fundamental reality.
Christopher Bassford, Clausewitz in English: The Reception of Clausewitz in Britain and America, 1815-1945, Chapter 4 (New York: Oxford University Press, 1994).
The fundamental reality of litigation, mediation, arbitration and trial is that each is a continuation of the other, and the best results in mediation are achieved by those best prepared for war.
Parties who attend mediation knowing the facts of their case, their likelihood of proving the facts that matter, their litigation budget, and their closing argument are more likely than not to settle. Your ability to secure a durable settlement increases in direct proportion to your readiness, willingness, and ability to fight. Mediation is not a place to find out the value of your case, it's a place to find out if you're going to settle the case you have.
To secure peace is to prepare for war.
Preparation secures peace in mediation by defining and enabling choices.
Your settlement should be an option, not a consequence of mediation.
The plaintiff in the case of Jay Lange v. Roxanne Schilling, et al. (2008) (PDF) 163 Cal.App.4th 1412, 78 Cal.Rptr.3d 356, ultimately spent over $113,000 in attorney fees to recover a $13,000 judgment, but failed to recover his attorney’s fees because he did not attempt to mediate his dispute before commencing litigation.
Paragraph 22 of the California Association of REALTORS (CAR) form purchase and sale agreement, used in this and the majority of California residential real estate transactions, provides the following attorney’s fees language:
In any action, proceeding, or arbitration between Buyer and Seller arising out of this Agreement, the prevailing Buyer or Seller shall be entitled to reasonable attorney fees and costs from the non-prevailing Buyer or Seller, except as provided in paragraph 17A.
17A, however, is the critical paragraph of the CAR Agreement for the purposes of Mr. Lange and this post. 17A states, in pertinent part, that:
Buyer and Seller agree to mediate any dispute or claim arising between them out of this Agreement, or any resulting transaction, before resorting to arbitration or court action.... If, for any dispute or claim to which this paragraph applies, any party commences an action without first attempting to resolve the matter through mediation, or refuses to mediate after a request has been made, then that party shall not be entitled to recover attorney fees, even if they would otherwise be available to that party in any such action.
(See Lange at 1414, emphasis added.)
The California Third District Court of Appeal, citing Frei v. Davey (2004) 124 Cal.App.4th 1506, 22 Cal.Rptr.3d 429, and other California cases held, bluntly, that “the agreement means what it says: plaintiff's failure to seek mediation precludes an award of attorney fees.” (Lange at 1414.)
(The Lange v. Schilling decision (PDF) was recently certified for publication, thanks to the efforts of the California Association of REALTORS.)
Copyright © 2008 by Kevin K. Forrester. All rights reserved.
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