More Comments from Satisfied Clients

I recently mediated a wage-and-hour case with Steven for a very difficult case involving a small business owner faced with a former employee's demand that could have forced her into bankruptcy for her struggling company. Steven showed incredible patience, tenacity, and creativity in getting the matter resolved, even in the face of a very scared and emotional defendant, and a determined former employee and opposing counsel. It wasn't an easy case to resolve, but he did it!

Nancy Yaffe
Partner Fox Rothschild LLP
Los Angeles, CA

My firm recently used Steven G. Pearl, Esq. as a mediator in a wage and hour case. Mr. Pearl is extremely knowledgeable in the area of wage an hour and has the ability of bridging the gap between the parties diverging positions. In this particular case emotions ran high; however, Mr. Pearl was able to deal with the emotions of the parties and got everyone to objectively focus on the potential exposure if the case were to proceed to trial. Mr. Pearl was able to come up with unique settlement options for the parties to consider. Mr. Pearl was not willing to give up until every option was explored and finally after a full day mediation, Mr. Pearl was able to get the parties to settle. Our firm unequivocally recommends Mr. Pearl as a mediator and we will not hesitate to use him again.

Michael Nourmand, Esq.
The Nourmand Law Firm, APC
Los Angeles, CA

Steve Pearl is extremely knowledgeable about labor and employment law. His experience as an attorney and his consistent work as a mediator in this field are invaluable. He is an excellent mediator who can handle and manage very difficult and complex cases and more importantly, relate to a broad spectrum of individuals. Steve’s knowledge of the law, and, most importantly, ability to bring the parties together is truly impressive. Also, through Steve’s skill, creativity, and perseverance, we reached a successful settlement. I recommend his services to any attorney or party, regardless of the subject matter.

Alexander Gareeb
Gareeb Law Group APC
Woodland Hills, CA

Comment from a Satisfied Mediation Client

We recently used Steve Pearl’s mediation services on a very contentious case with excellent results. This was a certified class action with 2,000 class members just two months away from trial.

Steve was able to bring the mediation together and keep both sides motivated and coming back to the table, despite our firm belief that the case would never settle. Steve dealt adroitly with hostile attitudes from some of the participants and corralled the parties into realistic negotiations.

The case would not have settled but for Steve’s follow up and persistence. Steve insisted that the parties come back for a second day of mediation -- even though neither side thought it would resolve the case -- and continued to assist the parties in hammering out the key terms to a settlement that was reached after two full, grueling days of mediation, plus several days of phone calls and emails.

(And to the delight of everyone, we were provided home-baked goodies each day).

I highly recommend Steve as a mediator for any type of case, especially those that require a tough backbone. He can handle the job.

Rene L. Barge
Class Action Litigation Group
Huntington Beach, CA

Cal. Supreme Court Schedules Oral Argument for Mediation Confidentiality Dispute

The California Supreme Court will hear oral argument on Cassel v. Superior Court (Wasserman Comden Casselman & Pearson) on November 2, 2010, at 9:00 a.m., in San Francisco.

See our original post on Cassel here.

Court of Appeal Requires Personal Consent for Enforceable Settlement Agreement

Critzer v. Enos (8/30/10) --- Cal.App.4th ---, emphasizes the need for the consent of all parties -- either in writing or orally before the court -- in order to obtain an enforceable settlement agreement.

In a multi-party action, the parties recited the terms of a settlement agreement in open court, and three of the five parties gave their consent on the record. The parties could not agree on the language of a formal settlement agreement, and one brought a motion to enforce settlement under California Code of Civil Procedure section 664.6, which provides:

If parties to pending litigation stipulate, in a writing signed by the parties outside the presence of the court or orally before the court, for settlement of the case, or part thereof, the court, upon motion, may enter judgment pursuant to the terms of the settlement. If requested by the parties, the court may retain jurisdiction over the parties to enforce the settlement until performance in full of the terms of the settlement.

The trial court granted the motion. The Court of Appeal, noting that the law requires the personal assent of the parties themselves, and not just their counsel, reversed:

We conclude further that because there was neither an oral settlement all parties personally agreed upon, nor a written settlement agreement signed by all of the parties, the court lacked authority under the summary procedure of section 664.6 to enforce any settlement.

Slip op. at 2.

The full text of the opinion is here.

Court of Appeal Rules Mediator's Testimony Inadmissible in Settlement Agreement Dispute

Radford v. Shehorn (August 19, 2010) --- Cal.App.4th ----, is one of those cases that's not just well reasoned, it's well written and fun to read. It asks whether a mediator can submit a declaration in support of a motion to enforce a settlement agreement. It begins:

Mediators facilitate settlement of legal disputes. They use a variety of techniques to achieve that goal which include listening, enlightening, suggesting, empathizing and, sometimes, cajoling. But once the mediation is concluded, the mediator may not offer clarification concerning the mediation or a disputed settlement unless the parties agree otherwise. Like an actor whose concluding scene occurs in Act 2, the mediator may not reenter the stage to play a part in Act 3.

The parties here signed a settlement agreement during a mediation. One party brought a motion to enforce the agreement pursuant to Code of Civil Procedure section 664.6. The first page of the agreement contains a waiver of mediation confidentiality. A question arose whether the first page was part of the agreement. The trial court found it was and granted the motion to enforce the settlement.

We conclude the trial court erred in admitting the mediator's declaration into evidence, but that the error was harmless. We affirm.

Slip op. at 1.

The Court reasoned that mediation confidentiality prohibits a mediator from testifying - in person or in a declaration - to anything having to do with a settlement agreement drafted at a mediation, including the number of pages the agreement contains. The trial court erred in admitting the mediator's declaration, but the Court held that the error was harmless because the motion was supported by counsel's declaration that the parties executed the settlement agreement. Although mediation confidentiality prohibits attorneys from testifying as to things said at mediation, it does not prevent them from testifying as to conduct, such as the parties signing the settlement agreement. That said, the Court affirmed the order enforcing the agreement.

The opinion is available here.

How to Deliver Value to Clients

Jeff Krivis's book, How to Make Money as a Mediator, is not about how to make money as a mediator. It is about how to build a successful mediation practice: working hard, being fair, being worthy of the trust that clients place in you, being true to who you are, building relationships, closing the deal. Really, this book is about what every good mediator strives to do: creating value for your clients.

One of my favorite parts of the book is the section entitled "The Best Investments Are In People and Place." Krivis emphasizes the need to find and invest in great people, who will represent you to the world.

I am very fortunate to have terrific people to work with. They add value for our clients in our litigation and mediation practices and have helped me build our practices. Having them to work with makes all the difference.

Court of Appeal Finds that Mediation Confidentiality Does Not Protect Attorney-Client Communications

In Porter v. Wyner (Cal.App. 2 Dist., April 08, 2010) --- Cal.Rptr.3d ----, 2010 WL 1382368, the Court of Appeal considered whether the mediation privilege cvers communications between attorney and client made in the course of a mediation. The Court described the dipuste as follows:

Wyner Tiffany had previously represented the Porters in a separate lawsuit brought by the Porters against the Manhattan Beach Unified School District and the California Department of Education. The instant lawsuit arose as a result of Wyner Tiffany's failure to follow through on a promise that was allegedly made to the Porters during a mediation of that underlying action wherein Wyner Tiffany promised to pay the Porters certain proceeds from their attorneys' fees. Though Wyner Tiffany initially objected to the admissibility of the communications made during the mediation of the underlying lawsuit, they later withdrew the objection. At trial, evidence of the communications between Wyner Tiffany and the Porters with respect to the promises made at the mediation were admitted. Approximately a month after the trial court entered judgment, it granted a motion for new trial because it believed the then newly decided case of Simmons v. Ghaderi (2008) 44 Cal.4th 570, 80 Cal.Rptr.3d 83, 187 P.3d 934 (Simmons), mandated such a result.

Appellants claim the trial court erred in granting the new trial, as the communications between an attorney and its client do not fall within the purview of mediation confidentiality. Wyner Tiffany contend the trial court properly granted their motion for a new trial because the jury's consideration of confidential mediation communications created an irregularity in the proceedings statutorily mandating a new trial. Wyner Tiffany also cross-appeal, contending the trial court erred in ruling their motion for a judgment notwithstanding the verdict (JNOV) was moot.

Slip op. at 1.

A split Court of Appeal panel held that communication between attorney and client do not fall within the protection of mediation confidentiality. After reviewing the confidentiality provisions of Evidence Code Section 1119, et seq., the Court held:

The purpose, policy and intent behind mediation confidentiality is to protect the free flow of communication and ideas (e.g.demands/offers) that form the basis and structure of a successful resolution process. The confidentiality that is accorded mediation was never intended to protect communications or agreements between a client and his own counsel should a conflict arise between them. The attorney-client privilege, codified in section 954, already provides the necessary protection. Section 958, through its waiver procedure, allows a client to seek appropriate recourse should something occur that places him and his attorney on a conflict course. It provides that there is “no privilege” that covers “a communication relevant to an issue of breach, by the lawyer or by the client, of a duty arising out of the lawyer-client relationship.” (§ 958.)

Slip op. at 7. The Court expressed concerns that extending mediation confidentiality to attorney-client communications would make it impossible for clients to waive the attorney-client privilege and would have a chilling effect on the use of mediations. Ibid.

The Court also expressed concern that if it allowed mediation confidentiality to include attorney client communications, it would lead to a slippery slope wherein all attorney-client communications in a mediated case could be considered as being confidential, "virtually every discussion between an attorney and his client during the course of representation could be considered as falling within that definition because any discussion may be used for a mediation purpose down the line." Slip op. at 8.

Finally, the Court distinguished the decision in Simmons v. Ghaderi (2008) 44 Cal.4th 570, 80 Cal.Rptr.3d 83, 187 P.3d 934, in which the California Supreme Court held that mediation confidentiality must be strictly construed and prevents introduction of evidence that a doctor consented to the settlement of a medical malpractice action where the doctor refused to sign a written settlement agreement. The Court held that the Simmons decision's strict protections for mediation communications did not apply to the statements at issue here, since they were not subject to confidentiality in the first place.

I believe that the Porter majority reached the correct result. Attorneys must remember that the clients are the holders of the attorney-client privilege and may waive the privilege when they believe that their attorneys have acted inappropriately. As the Porter majority noted, expanding mediation confidentiality to include attorney-client communications would eviscerate this important public protection.