Alternative Dispute Resolution Issue - Contra Costa County Bar ...

SATURDAY November 7, 2009California Women Lawyers Presents:“So, You Want To Be A Judge?”Seminar on the Judicial Appointments and Elections Process for Men and WomenJohn F Kennedy University, School of Law100 Ellinwood Way, Pleasant Hill, CA 94523-4817GUEST SPEAKERS -SHARON MAJORS-LEWIS, ESQ. HON. CHARLENE P. KIESSELBACH ANDREW STECKLERGovernor’s Judicial Appointments Secretary San Francisco County Superior Court 2010 Vice- Chair, JNE CommissionLUNCHEON KEYNOTE SPEAKERThe Honorable Martin Jenkins, California Court of Appeal, 1 st DistrictAfternoon workshops will be led by sitting judges.Lunch will be provided and there will be a keynote speaker during lunch.Speakers: Hon. Suzanne Suzanne Ramos Ramos Bolanos, Bolanos, San Francisco San County Francisco Superior County Court; Hon. Superior Jill Fannin, Court; Contra Hon. Costa Jill County Fannin, Superior Contra Court; Hon. Costa Barry County Goode, Contra Superior CostaCourt; County Hon. Superior Barry Court; Goode, Hon. Brenda Contra Harbin-Forte, Costa County Alameda Superior County Superior Court; Court; Hon. Hon. Brenda Stuart Hing, Harbin-Forte, Alameda County Alameda Superior County Court; Hon. Superior Joni Hiramoto, Court; Contra Hon.Stuart Costa Hing, County Alameda Superior Court; County Hon. Curtis Superior Karnow, Court; San Francisco Hon. Joni County Hiramoto, Superior Court; Contra Hon. Costa Leslie Landau, County Contra Superior Costa County Court; Superior Hon. Court; Curtis Hon. Karnow, Diana Becton SanFrancisco Smith, Contra County Costa Superior County Superior Court; Court; Hon. Hon. Leslie Garrett Landau, Wong, San Contra Francisco Costa County County Superior Superior Court; Hon. Court; Barbara Hon. Zuniga, Diana Contra Becton Costa County Smith, Superior Contra CourtCosta County Superior Court; Hon. Garrett Wong, San Francisco County Superior Court; Hon. Barbara Zuniga, Contra CostaCounty Saturday, Superior November Court; 7, 2009 Registration and Continental Breakfast: 8:15 a.m. Program: 9:00 a.m. to 3:00 p.m.YES! Sign me upSaturday, November 7, 2009 Registration and Continental Breakfast: 8:15 a.m. Program: 9:00 a.m. to 3:00 p.m. $200 (includes lunch) $100 New MembershipYES! $150 Sign Current me up CWL Member (includes lunch) Join CWL today and receive the special rate of $150 for seminar! Total $250 $175 $160 Pre-Registration Co-Sponsors (includes (includes lunch)• RSVP must be received You by can April contact 29, the 2009 CWL • Executive $200 at the Office door for more information or join online at www.cwl.org $150 $75 Law Current Students CWL Member (includes lunch)$ Total amount enclosed $160 Co-Sponsors (includes lunch) $100 New Email: Membership info@cwl.org – Join or CWL cwlinfo@att.net Today and • receive Watch the website special at: rate www.cwl.org of $150 for for seminar! link to Total register $250 onlineYou can contact the CWL Executive Office for more information or join on-line at www.cwl.orgNAME $75 Law StudentsEmail: CHARGE info@cwl.org TO: VISA or cwlinfo@att.netMasterCard only$ _______ Total amount enclosedWatch website at: www.cwl.org for link to register onlineADDRESSCARD #CITYNAME: _____________________________________ZIPCHARGEEXP. DATETO: VISA or MasterCardCID CODEonlyCard #:_____________________________________PHONEADDRESS:__________________________________BILLING ADDRESSEXP. DATE: _____________ CID CODE: ___________CITY: ___________________________ ZIP ______Mail Registration and Check Payable to:ZIP CODEAMOUNTBILLING ADDRESS_____________________________CWL PHONE: 650 Howe ________________________________Avenue, Suite 1050, Sacramento, CA 95825NAME ON CARDTel ZIP CODE: __________ AMOUNT: ________________MAIL (916) REGISTRATION 646-3114 Fax (916) 646-6469 AND CHECK PAYABLE TO:CWL 650 Howe Ave., Ste. 1050, Sacramento, CA 95825 NAME ON CARD: _______________________________Tel (916) 646-3114 fax (916) 646-6469

inside2009 BOARD of DIRECTORSLarry Cook PresidentRon Mullin President-ElectKathy Schofield SecretaryAudrey Gee TreasurerRobin Pearson Ex OfficioChristopher BowenOliver BrayMike BrewerJay ChafetzVirginia GeorgePeter HassLeigh JohnsonKristen Thall PetersRon RivesDana SantosStephen SteinbergCandice StoddardCCCBA EXECUTIVE DIRECTORLisa Reep: 925.288-2555 • lgreep@cccba.orgCCCBA main office: 925.686-6900 • www.cccba.orgJennifer ComagesMembership CoordinatorEmily DaySystems Administrator andFee Arbitration CoordinatorManny GutierrezAdministrative Assistantand Legal InterviewerEDITORCandice Stoddard925.942-5100ASSOCIATE EDITORNancy J. Young925.229-2929BENCH LIAISONHon. Mary Ann O'Malley925.646-4001BOARD LIAISONCandice Stoddard925.942-5100COURT LIAISONKiri Torre925.957-5607ADVERTISING/DESIGNYoung Design & Production925.229-2929PRINTINGExcel Graphics925.552-9998Contra Costa LawyerPHOTOGRAPHERMoya Fotografx510.847-8523Maria NavarreteLRIS CoordinatorBarbara TillsonModerate Means ProgramCoordinatorMichele VastaSection Liaison / Education& Programs CoordinatorEDITORIAL BOARDMark Ericsson925.930-6000Matthew P. GuichardLocal Civil Jury Verdicts925.459-8440Patricia Kelly925.258-9300Nicole Mills925.351-3171Craig Nevin925.930-6016David Pearson925.287-0051Erika Portillo925.459-8440Andy Ross925.296-6000Kathy Schofield925.253-7890Audrey Smith, JFK Liaison925.969-3561Harvey Sohnen925.258-9300Marlene Weinstein925.942-5100The Contra Costa Lawyer (ISSN 1063-4444) is publishedmonthly by the Contra Costa County Bar Association (CCCBA),704 Main Street, Martinez, CA 94553. Annual subscription of $25is included in the membership dues. Second-class postage paidat Martinez, CA. POSTMASTER: send address change to theContra Costa Lawyer, 704 Main Street, Martinez, CA 94553.The Lawyer welcomes and encourages articles and lettersfrom readers. Please send them to: Nancy J. Young, AssociateEditor, Contra Costa Lawyer, 821 Escobar Street #124, Martinez,CA 94553; or email to: youngdesign@att.net.The CCCBA reserves the right to edit articles and letterssent in for publication. All editorial material, including editorialcomment, appearing herein represents the views of the respectiveauthors and does not necessarily carry the endorsement ofthe CCCBA or the Board of Directors. Likewise, the publicationof any advertisement is not to be construed as an endorsementof the product or service offered unless it is specifically statedin the ad that there is such approval or endorsement.by Nicole MillsMassive budget cuts have affected everyone’s practice in a myriad of ways, not the leastof which is the closure of the court every third Wednesday. With the court closed oncea month, the already-crowded calendars are getting more and more backed up. Lastmonth’s Contra Costa Lawyer provided all of us with a glimpse of the harsh reality ofthose budget cuts, what that is like from the point of view of the courts and how hardthey are all working despite these limitations.In addition to the constraints on the court, both businesses and individuals are feelingthe pinch. Businesses are cutting back across the board, and that includes legal expenses.Fights over money and the stress caused by losing one’s job and/or home are causingproblems in families.ADR can provide an alternative to the courts, rendering more control to the parties (overthe process, the speed and the outcome) while at the same time easing the burden on ouralready overburdened court system. To that end, Tom Cain and The Congress of Neutralsprovide the Superior Court with volunteer mediators. Our Pro Bono Spotlight focuseson The Congress and the important work that Tom and his volunteers are doing.In this issue, we have tried to do two things: First, encourage practitioners to thinkoutside of the box when it comes to situations in which ADR is appropriate. We all knowthat mediation is helpful in the context of civil litigation, but it can also be helpful inavoiding litigation. Family law is a prime example of this, but it is an area many civillawyers know little about. Faith Jansen describes the use of ADR in the context offamily law and how it can be both similar and different than the practice of ADR in acivil case, while Arlene Segal focuses on the use of mediation for disputes involving elders,and why mediation can be a better, more productive strategy than litigation. We hopethat both articles encourage you to consider mediation in new and creative ways.Second, we focus on encouraging reflection on the process of mediation itself. Doingso can raise very sticky issues. It is important, however, to identify and consider theseissues, regardless of how you come out in the end. This is particularly true with regardto ethics, and Linda DeBene tiptoes through the ethical minefields that must be carefullyconsidered and negotiated in a mediation. Issues of gender roles of both the partiesand the mediator can also present challenges, and when people try to delve intothis subject, there can be a swinging match! We take no position, but Dave Miller stepsinto the ring. Read his piece and decide whether you agree, or are ready to swing back... with gloves on or off. Both of these articles highlight the importance of self-reflectionand awareness on the part of the mediator, and how doing so can make for a betterand more successful mediation experience all around. u— Nicole Mills is a mediator in Walnut Creek, specializing in elder and civil mediation.4 November 2009

Coming in December:Online RenewalCCCBA needs your continued membership support!Every year your membership dollars provide numerous programs and services to help you andyour practice, and to help the larger community to navigate and understand our legal system. Sowe’d like to remind you that it’s that time of the year again. Renew now to avoid any lapse inyour membership benefits.2010 CCCBA Membership Online Renewal DriveThere are lots of changes coming next year. Our website will launch this January with a streamlineddesign, new resources and tools, and completely new material for both our attorneymembers and our community. And better yet, we’ve signed up to use InTouchOnDemand, an onlinesoftware tool that creates increased efficiencies for attorney membership tasks and activities.During the renewal period beginning in December, CCCBA members can access their personalaccounts, review and update contact information, make new membership selections — and payeasily through our online payment system. And going green by offering online tools and resourcesis a win-win for everybody.Expect a Renewal Letter in Email SoonYou will receive an email in the next couple of weeks reminding you that it’s time to renew. Then,look for “Renew” online on our current home page. You’ll click on through to InTouchOnDemand’ssite for CCCBA. It takes just a couple of minutes to: review your information in “My Account;”make any changes; join any sections or LRIS panels; make a payment with your credit card . . .and you’re done.Stay tuned. And thanks again for your membership support!ADR Section Announces New Mentoring ProgramThe ADR Section is committed to ensuring that Contra Costa County continues to provide the high-quality mediators forwhich it has become known. Therefore, the ADR Section announces that it is creating a new Mediation Mentoring Program.The program will pair new mediators with experienced mediators to allow new mediators to gain valuable experience andinsight into the mediation process and to give experienced mediators the chance to share their wealth of knowledge. If youare interested in learning more about the program, either as a new mediator seeking help or an experienced mediator whowould like to act as a mentor, please contact Nicole Mills at nicolemillsesq@yahoo.com.Contra Costa Lawyer 5

Contra Costa Family Law ADRWe’ve Come a Long Wayby Faith JansenFamily Law AltERNAtive DisputeResolution in Contra Costa traces itsroots back to the late 1970s when then superiorcourt Judge Donald King (later to becomeappellate justice) spear-headed the publicationof Uniform Guidelines for the administrationof the newly established nine Bay Area countyFamily Court Services offices. These UniformGuidelines completed the shift in judicialpolicy from mandatory “conciliation counseling”(an attempt to reconcile divorcing parties)to child custody mediation (focusing on keepingkids off the witness stand). Most FamilyCourt Services mediators were mental healthprofessionals. Those who had J.D. degrees werenot considered to be practicing law when theymediated custody agreements for the court.As the Family Court Services systemlegitimized the use of mediation in the narrowarea of child custody, private family lawpractitioners saw the potential for usingmediation to settle an entire divorce case. Atfirst, the State Bar was resistant to the notionof attorneys practicing mediation, lookingupon it as improper dual representation withconflict of interest problems. Trail blazingfamily law practitioners in the Bay Area foundcreative ways to push forward nonetheless.One tactic they developed to practicemediation and circumvent State Bar disapprovalwas to obtain a marriage counselinglicense alongside the legal license. Otherintrepid attorney-mediators plowed forward,expecting the State Bar to eventually give upits resistance to change. In the 1980s, therewere ambiguities concerning the professionalliability insurance industry’s coverage ofmediation, again based on the notion thatmediation was improper dual representation.Around the mid 1990s, when theseambiguities were fully resolved in favor ofallowing and insuring the practice of mediationby attorneys, interest in mediationsurged. Civil mediators joined the movementalong with family lawyers.Family law and civil mediation methodshave developed along different tracks. Infamily law mediation, it is common for theparties to attend mediation sessions as unrepresentedparties (pro pers). In this model, eachparty consults with his or her own legal counselbetween mediation sessions, if at all. Incontrast, the attorneys in a civil mediationusually accompany their clients to all mediationsessions. Family law mediation sessions usuallylast two hours and are set weekly or biweekly,proceeding at a steady pace but without pressure.Civil mediation sessions generally arescheduled for an entire day, with the goal ofnegotiating, drafting, and executing a settlementstipulation in one marathon session. Infamily law mediation, the technique of caucusing(separating the parties into different rooms,with the mediator shuttling between them) isgenerally avoided because each self-representedparty may fear that the mediator has lostneutrality and is aligning more with one partythan the other behind closed doors. In civilmediation, caucusing is a standard, highlyeffective technique because the parties havetheir attorneys at their sides at all times.One distinctive aspect of family lawmediation is the need to screen the case at theoutset for domestic violence, psychologicalcontrol, or other power imbalance problemsthat may render it unsuitable for mediation.CCCBA’s Family Law Section has presented aprogram with specific forms and interviewmethods to address this concern. No other areaof mediation requires the legal practitioner tolearn as much about human psychology in orderto understand the personal dynamics influencingthe mental functioning of the parties.In the family law arena, the clients’ emotionaldynamics are highly likely to contaminate theprofessional relationship between the lawyers.Perhaps for this reason, family law practitionershave been and continue to be interested infinding ADR methods that reduce the psychologicaldamage to clients and their children.The latest ADR method to emerge infamily law private practice is CollaborativeLaw. Collaborative Law began in the mid1990s as a hybrid of mediation and traditionalout-of-court four-way settlement meetings.As in traditional representation, collaborativeattorneys provide legal counsel to their client,but they also have an obligation to work withtheir client, the other spouse, and the othercollaborative attorney toward a settlementthat benefits all members of the family. InCollaborative Law, as in mediation, theattorney may not later switch roles andbecome a litigator in the case. As CollaborativeLaw has developed, a team negotiationmodel known as Collaborative Divorce hasemerged in which the parties are paired notonly with collabor a tive attorneys but alsowith mental health professionals (called communication“coaches”) who provide psychologicalsupport for their respective clients andwork with the collaborative attorneys toprevent the negotiation process from beingderailed by emotional issues. Child developmentspecialists and financial specialists arealso brought into this team as neutral consultants.This ADR method utilizes many ofthe same professionals that would appear ina trial but delivers their services within anon-adversarial, confidential framework.Focusing on the development of familylaw ADR at the courthouse, an excitingdevelopment in the last decade has been theaddition of the Family Law Facilitator’s office.This arm of the court staff was created toprimarily assist self-represented child supportlitigants to take some of the load off of theDepartment of Child Support Services. Everyday these attorneys, known as the Family LawFacilitators, work face to face with dozens ofself-represented litigants, utilizing bothfacilitative and evaluative mediation skills.The ADR techniques that work best for thesefacilitators, and the extent to which thesemethods are well received by the public and u6 November 2009

B A R R & B A R RA T T O R N E Y SWe are pleased to announce that we have movedto a newly renovated office in Danville to accommodatethe addition of the following attorneys to our firm:•Williem J. Bard, Esq.Janet M. Li, Esq.Christopher M. Moore, Esq.•Our new address and contact information:318-C Diablo Road Phone: (925) 314-9999Danville, CA 94526-3443 Fax: (925) 314-9960Will & Trust LitigationElder Abuse Litigation • ConservatorshipsB A R R & B A R RA T T O R N E Y S318-C Diablo Road • Danville, CA 94526-3443 • (925) 314-9999Edward E. Barr (retired)Janet M. LiLoren L. Barr*Christopher M. MooreJoseph M. MorrillJohn Milgate, Of CounselWilliem J. BardTracey McDonald, Paralegal*Certified Specialist, Estate Planning, Trust and Probate Law, The State Bar of California Board of Legal SpecializationContra Costa Lawyer 7

Elder Law isAlzheimer’sPlanningThe Law Offices of David M. LedermanDavid M. LedermanCertified Family Law SpecialistState Bar Board of Legal SpecializationThe average survival rate is eight years after beingdiagnosed with Alzheimer’s — some live as few asthree years after diagnosis, while others live as longas 20. Most people with Alzheimer’s don’t die fromthe disease itself, but from pneumonia, a urinarytract infection or complications from a fall.Until there’s a cure, people with the disease willneed caregiving and legal advice. According to theAlzheimer’s Association, approximately one in tenfamilies has a relative with this disease. Of thefour million people living in the U.S. withAlzheimer’s disease, the majority live at home —often receiving care from family members.If the diagnosis is Alzheimer’s,call elder law attorneyMichael J. YoungEstate Planning, Disability, Medi-Cal,Long-term Care & VA PlanningProtect your loved ones, home and independence.n925.256.0298www.YoungElderLaw.com1931 San Miguel Drive, Suite 220Walnut Creek, California 94596Tom SmithAssociate AttorneyPracticing exclusively in all aspects of Family Lawin Walnut Creek and Antioch3432 Hillcrest Avenue • Suite 100 • Antioch, California 94531309 Lennon Lane • Suite 102 • Walnut Creek, California 94598Phone 925.522-8889 • Fax 925.522-8877www.ledermanlaw.netthe bench, will influence the future of familylaw ADR services at the courthouse.Family and civil mediators are increasinglyrecognizing that mediation is never completelyevaluative (positional bargaining against thebackdrop of the imagined best-case versusworst-case trial outcomes) or completelyfacilitative (interested-based bargaining).Instead it is always a mixture of both in varyingproportions. Family law attorneys havetended to emphasize a facilitative approachwhile providing the parties with basic informationabout the law and scrutinizing thepersonal dynamics of the process to assesswhether a client may be making a deal forthe wrong (eg., negative psychological)reasons. A family law mediator may insistthat a self-represented client see a consultingattorney to ensure that the client receives anevaluative analysis in a manner that does notsubvert the neutrality of the mediator’s relationshipto both self-represented parties.There remains great untapped potentialfor ongoing exchange between family law andcivil mediation methods. For example, familylaw attorneys may opt to hire a privatemediator (or private judge if a more evaluativeapproach is desired) to conduct a marathonday-long confidential mediation or settlementconference following the civil mediationmodel, with the clients and their attorneysattending and participating in joint sessionsand caucusing. At the same time, civilmediators have been trying out facilitativetechniques, such as giving empathetic feedbackto each client, finding that such techniquessometimes build a modicum of mutualconsideration between the mediating parties,which becomes the key to reaching a settlementin a negotiation process that is otherwisepredominantly evaluative.As Contra Costa Family Law ADR entersits fourth decade, the most dynamic areas ofdevelopment are likely to include the continuing“cross-cultural” exchange between familylaw and civil mediators and the further expansionof ADR institutions at the courthouse. u— Faith Jansen, a CertifiedFamily Law Specialist in WalnutCreek, has chaired the MediationCommittee of CCCBA’s FamilyLaw Section since 1999 and haspracticed family law since 1981.8 November 2009

More than you ever wanted to knowInsurance Disclosure Rule Approvedby Dick FrankelUnder a new Rule of Professional Conduct approved by the Supreme Court in August, lawyers who do not carrymalpractice insurance must tell their clients — under most circumstances — that they are not insured. Rule 3-410takes effect January 1, 2010. The five-part rule has these requirements:• Notification that a lawyer does not carry professional liability insurance must be made in writing at the timea client hires the lawyer, if it is “reasonably foreseeable” that the representation will exceed four hours.• If the insurance coverage later lapses, the attorney must tell the client within 30 days of the time he or sheis no longer insured.• Government lawyers and in-house counsel are exempt.• The rule does not apply to legal services given in an emergency to avoid prejudice to a client’s rights or interests.• The rule does not apply if the lawyer previously informed the same client that he or she is not insured.The rule was three years in the making and led to sharp division within the State Bar Board of Governors. The finalproposal was the fifth version of a rule that was first recommended in June of 2006.The American Bar Association adopted a model rule in 2004 concerning malpractice insurance disclosure;23 states have adopted some type of disclosure requirement.Chief Justice Ronald George appointed a task force that proposed a new rule of professional conduct requiringdisclosure to the client and a new rule of court requiring disclosure to the bar. The bar would, in turn, have identifiedthose without insurance on its website.The proposal sparked widespread opposition from solo and small firm lawyers, who complained they would bedisproportionately affected, as well as the Conference of Delegates of California Bar Associations and other localbars. Proponents — including bar committees on ethics, professional liability and mandatory fee arbitration — sawdisclosure as a public protection measure and a way to provide important information about attorneys to prospectiveclients. Opponents, however, viewed disclosure as an expensive requirement that could stigmatize attorneys whodo not carry malpractice insurance, could reduce the availability of legal services to low- and middle-income clientsand could serve as an incentive for disgruntled clients to sue for a quick cash settlement.Although California required a form of malpractice disclosure that began in 1992, a sunset clause was added tothe legislation the following year and the statute was repealed by its own terms in 2000.An estimated 30,000 California lawyers — about 20 percent of active practitioners — currently do not carryprofessional liability insurance. In general, malpractice policies cost between $4,000 and $7,000 annually.The State Bar conducted an online survey during the summer on the availability and affordability of malpracticeinsurance and is analyzing the more-than 1,600 responses.Complete text of the rule is at the bar’s website, calbar.ca.gov. Go to Attorney Resources>Rules>Rules ofProfessional Conduct>Current Rules. u“Complete ADR Services”ADR PROFESSIONALSJUDGE MICHAEL J. BERGERJUDGE RICHARD H. BREINERHON JEANNE MARTIN BUCKLEYJUDGE VICTOR CAMPILONGOJUDGE JOHN J. GALLAGHERJUDGE ISABELLA H. GRANTJUDGE RONALD GREENBERGJUDGE INA LEVIN GYEMANTJUDGE HADDEN ROTHJUDGE VERNON F. SMITHPATRICK M. BRODERICKCLAYTON E. CLEMENTW. GREGORY ENGELHOWARD M. GARFIELDPERRY D. LITCHFIELDGARY T. RAGGHIANTIPAMELA M. SAYADMICHAEL D. SENNEFFERIC STERNBERGERMATTHEW N. WHITERICHARD S. WHITMOREW. BRUCE WOLDLook for us on the Webwww.resolutionremedies.comRobert E. AuneMediation and Arbitrationof Real Estate MattersConstruction Defects • Lease DisputesHomeowner Association DisputesCommercial Finance • Land UseInsurance Coverage505 Sansome Street, 6th Floor • San Francisco 94111415.433-6400 • raune@auneassociates.comFamous ResRem LunchesDiane Levinson-Fass, PresidentDiane Story, Vice PresidentTel: (800) 778-2823Copy CCCBA-RR REV(2009).docContra Costa Lawyer 9

Mediation and SeniorsThe Perfect Match?by Arlene SegalMediation, properly managed, is farmore than a settlement conference.Although it may lead to the same resolution,the process of mediation providesopportunities for the parties to fullyexplore and deal with the issues, the facts,and even the feelings involved. It allowsparties to tailor the resolution process totheir specific needs, with sensitivity to theneeds of all. The setting can be as formalas a law office conference room, or asfamiliar as a kitchen table. This can beparticularly effective when dealing withissues involving seniors.Whatever the setting, there are nostrangers present; no intimidating courtroom;no public record being made. Fora senior, this can be particularly important.There is protection from exposure of hispredicament — his sense of humiliation,embarrassment, intimidation, or evenbetrayal. All is confidential. There is nopublic display of his physical frailty or poormemory. There is no shame of having his“dirty laundry” aired for all to see.Mediation can provide an opportunityfor the senior to recount his story, but ina narrative form with which he is familiar.He can avoid the stress of having to sitthrough a court proceeding with hisantagonist staring at him, or of beingcross-examined by opposing counsel. Theelderly party can even be spared havingto sit in the same room with the per -petrator while the mediation proceeds.Alternatively, and perhaps even better, hemay be able to sit across the table, hearwhat others have to say, and even talk tothem and begin to understand and restorevaluable relationships.The following are composite summariesof cases meant to illustrate some ofthe issues that can be confronted, avoidedor resolved in mediation. Additionally,they are meant to illustrate matters thatwould otherwise likely remain outside therealm of resolution by way of court proceedingsthat can be addressed andresolved in mediation.Case #1. Mr. H, 80 years old, had beenmarried to his latest wife for 30 yearswhen she died. After her death, he discoveredthat one of her daughters (“thedaughter”) by a previous marriage hadMrs. H execute a trust leaving everythingto Mrs. H’s daughters. All assets, includingjoint accounts, had somehow beentransferred to the trust. The daughterinsisted everything in the trust was Mrs.H’s separate property.While Mr. H was fully competent andcould recite every detail about every car,lawnmower or piece of household furniturehe had ever owned, he knew nothing abouthis finances for the 30 years of the marriage.Mrs. H had handled everything.Mr. H’s longstanding heart conditionwas not helped by the loss of his wife. Hewas further stressed by the loss of hisinvestment accounts and an annuity thathe had expected to support him in thecoming years. A proud man, he felt like afool for not knowing much about hisfinances. Even worse, he felt betrayed bythe daughter, and perhaps by his wife.Case #2. 65-year-old Mr. T was workingand an active member of his church. Apartfrom his work, his entire life and everyonehe knew was involved in the church. Inanticipation of retiring, he was greatlyencouraged when his personal friend,a fellow church-member and realtor,told him she had found a home that hecould afford. He borrowed from his retirementplan to make the down payment.Unexpected eye surgery forced him toretire before the purchase was completed.His income, which was not really sufficientto begin with, was now greatly reducedand totally inadequate. Property values,however, had been going up.Over a period of about a year, anotherfriend (the “friend”) a younger man andfellow church member, started comingby. He routinely took Mr. T out for lunchand spent time with him, and Mr. Tappre ciated the attention. The friendadvised Mr. T that he could (and should)borrow against the equity in the propertyand use the money to make his monthlypayments. He explained how this wouldeliminate Mr. T’s financial stress. Thefriend arranged for the loan. Mr. T didnot realize that he never received all ofthe cash pulled out of the equity. He alsodid not know that among the loan papershe signed was a Grant Deed, transferringthe property to his friend.After just a few months, Mr. T realizedthat he was still going to run out of moneyto make his payments and that he neededto sell. He called the realtor, who discoveredthe new deed. Mr. T was stunnedwhen he learned that his “friend” was thenew owner of his home.Case #3. Mrs. E’s husband died suddenlyjust a few months after he retired. It wasonly then that she discovered Mr. E hadleft all of his business interests and investmentsto his children from a previousmarriage. While she recognized that Mr.E did have a separate property interest inthe assets, the two of them had worked10 November 2009

together in the business, which they alwaystalked of as the “family” business throughouttheir long marriage.Additionally, Mrs. E, 65, had alwaysbeen on very good terms with her stepchildren,whom she had helped raise. Mrs.E’s own health was declining and herknowledge of the somewhat-complicatedfinancial interests was limited, not becauseshe could not understand them, butbecause Mr. E had always handled “thebooks.” No one — neither her childrennor her stepchildren — wanted to put herthrough the strain of litigation.Case #4. Mr. O, who was nearly 80, foundhimself named as trustee of a friend’s trust.He worked hard to sort through dozensof investments and properly manageseveral parcels of real property. He didthis without assistance, and managedpretty well — just not as well as some ofthe beneficiaries thought he should have.To the detriment of the trust, they filedsuit, accusing him of improperly handlingsome of the assets. Their attorney mayhave gotten a little carried away with thenumerous accusations. The beneficiariesreally just wanted him to step aside andlet a professional act in his place. Mr. O,however, felt he had to honor the wishesof his deceased friend, and was badlyshaken by the accusations in the lawsuit.Unfortunately, suit was filed in eachcase. The parties, however, quickly agreedto early mediation. Perhaps even the “badguys” realized that courtroom proceedingswould not likely benefit them any morethan they would benefit the elderly parties.Mr. H filed his action. A quick agreementto mediate kept him from everhaving to step into court. His childrenand the stepchildren were all involved, onthe theory that they would all be witnessesif the matter proceeded in litigation. Allof the joint accounts and the annuity werereturned to him.Mr. T felt thoroughly betrayed. Worse,he was tormented by having to bring acharge against a member of his church.He, too, never had to appear in court, andearly mediation helped him through thisvery personal agony. He regained his homeuCOST-EFFECTIVE DISPUTE RESOLUTIONHon.AlfredChiantelli(Ret.)$450/hourHon.M.O.Sabraw(Ret.)$400/hourHon.RichardFlier(Ret.)Hon.DouglasSwager(Ret.)QUALITY PANELISTS.EXCELLENT SERVICE.Dorene Kanoh, VP50 Fremont St., Ste. 2110San Francisco, CA 94105Hon.StephenFoland, Comm.(Ret.)Hon.JamesTrembath(Ret.)Hon.RichardHodge(Ret.)MichaelCarbone,Esq.Hon.JoanneParrilli(Ret.)EricIvary,Esq.Hon.BonnieSabraw(Ret.)$385/hour $350/hour $425/hour $425/hour $425/hourMichaelMcCabe,Esq.$425/hour $400/hour $425/hour $350/hour $350/hourIt’s morethan a matterof trust.800.781.3441www.mechanicsbank.comPrivateBankingTrust andEstate ServicesFinancialPlanningwww.adrservices.orgInvestmentManagementCOMPETITIVE RATES.LOW ADMINISTRATIVE FEES.tel 415.772.0900fax 415.772.0960email dorene@adrservices.orgIt’s a matter of getting the job done when yourclient needs trust and investment managementservices. Our team at Mechanics Bank has theexperience, expertise and depth to handle themost complex situations. Or the simplest.• Qualified Domestic Trusts• Charitable Remainder Trusts• Business Ownership Interests• Business Succession Planning• Commercial and ResidentialReal EstateAs a Corporate Trustee, Co-Trustee, or in anynumber of other roles, we provide uniquecustom solutions rather than pre-packagedproducts. And after more than 104 years inbanking, people trust us for who we are.And for what we do. Call us today.Contra Costa Lawyer MEC 2935 CC LawyerMagAd_4.6875x4.5625.indd 17/14/09 11:09:17 AM11

“A unique and effective style -a great mediator”Please notenew Address!Meet the Tax Section’s2010 Incoming President!JONATHON M. MORRISONPracticing Tax and Estate Planning, Tax Controversy,Business, Real Estate, and Non-Profit LawYoungman Ericsson & Low, LLP1981 N. Broadway, Suite 300 • Walnut Creek, CA 94596925.930.6000jmorrison@youngman.com • www.youngman.comand Mediation CenterCandice StoddardRon MullinWillows Office Park p 1355 Willow Way, Suite 110Concord, California 94520Telephone (925) 798-3413 p Facsimile (925) 798-3118Email ronald@mullinlaw.comand his equity, and was spared having totestify against his fellow church member.Mrs. E’s children, not really parties tothe litigation, joined their mother andher stepchildren in the mediation. Theyfigured out what was needed to maintainher standard of living and forged an agreementthat created the necessary streamof income from the “family” business toprovide for her. There were no hard feelingsbetween the family groups. In fact,the mediation gave them an opportunityto reinforce their continuing, positiverelationship after the death of Mr. E.Mr. O and the beneficiaries agreed thathe could remain as trustee, but that hehad to proceed with the assistance of hisattorney and an accountant, and reportto the beneficiaries.The demands of a court appearance, letalone a trial, can be confusing and overwhelmingfor someone suffering the frailtiesof advanced age. Whether it is poor hearing,limited vision, general physical frailty, orsimply the need to maintain a medicationschedule, the reasons formal legal proceedingsare best avoided in favor of mediationare generally not only present, but oftencompelling when a senior is a party.A well-handled mediation can providea comfort level for all participants. It willnot likely have an all or nothing result.There will not be the vindication of a winsuch as at trial. The result is more likelyto be one that truly works for the parties,especially the elderly parties. In additionto what is tangible, the senior will havebeen spared the risks and stresses ofcourt proceedings, without foregoingthe benefits of a thorough exploration ofthe issues and possible solutions. As abonus, the elderly party may even comeaway with some of the dignity and selfrespectafforded by the process, benefitsthat can otherwise be so elusive. u— Arlene Segal is thepresident of CCCBA’s ElderLaw Section. Her litigationand mediation practicefocuses on real property issues,trust/estate disputes, andfinancial abuse of elders.12 November 2009

ALERT!Legislature Prohibits Advance Fee Retainer Agreementsfor Residential Mortgage Loan Modificationsby Karl E. GeierNew legislation signed by the Governor onOctober 13 imposes a number of restrictionsupon third parties who attempt to assistborrowers in the negotiation of loanmodifications, forbearance and similartransactions. While no doubt motivated bya desire to thwart fraudulent and deceptivepractices of predatory opportunists holdingthemselves out as mortgage modificationconsultants, the legislative process hasresulted in a statute that may discouragelegitimate advisors and counselors, includingattorneys, from representing borrowersin troubled loan situations.Under SB 94 (Calderon), effective as anemergency measure as of October 13, 1 anyattorney or other person who requiresadvance consideration or security for futurepayment from a borrower as a conditionof providing loan modification or forbearance-relatedservices commits a violationof Civil Code §2944.7. This statute appliesto any such agreement where the mortgageis secured by residential real propertycontaining four or fewer dwelling units.There are no exemptions for any sort ofpreexisting attorney-client relationship orother criteria. The penalty for violationis a fine of $10,000, a jail term of oneyear for the individual, as well as a $50,000fine for a business entity. The operativelanguage of the statute prohibits any person(including an attorney) from requiringcompensation until the person has fullyperformed each and every service contractedto perform, and prohibits any suchperson from taking “any wage assignment,lien, or other security to secure the paymentof compensation” or any power of attorneyfrom the borrower for any purpose. Ineffect, it is illegal and a criminal offense torequire an upfront retainer as part of a legalengagement with a client who falls withinthe statutory provisions. Further, underBusiness & Professions Code §6106.3, theviolation of §2944.7 by any attorney iscause for discipline of the attorney.As a result of this statute, any legalengagement that may involve the provisionof advice or assistance in negotiatinga modification, forbearance or other revisionsof the loan terms or the remedies ofa lender where the borrower’s securityproperty consists of a one to four familyresidential property (whether or not owneroccupied) will require careful scrutinyand compliance. The Legislature mightnot have intended the term “security”or “advance compensation” to includestandard attorney retention agreements,but the language of the statute does notsupport a contrary interpretation.Under a second provision, also enactedas an urgency measure under SB 94, anyattorney or any other person attemptingto represent a borrower in the negotiationof a loan modification or forbearance, priorto entering into any fee agreement withthe borrower, is required to provide to theclient, a separate statement in not less than14 point bold type, containing a specificdisclosure prescribed by the statute, to theeffect that it is not necessary for a borrowerto pay a third party to arrange for a loanmodification or forbearance. 2 This provisionmust be provided in the language inwhich the mortgage loan forbearanceservices are offered or negotiated if theretainer agreement is negotiated in one ofthe six languages other than English thatare specified in Civil Code §1632. A violationof this statute also is a public offensefor which the individual is subject to a fineof $10,000 and a one-year jail term, anda business entity is subject to a fine of$50,000. Again, it only applies to residentialreal property containing four or fewerdwelling units. Under Business and ProfessionsCode §6106.3, a violation of CivilCode §2944.6 by any attorney is alsogrounds for discipline of that attorney. u— Karl E. Geier is a shareholder of MillerStarr Regalia and Editor in Chief of Miller& Starr California Real Estate 3 rd .12009 Status., Ch. 94 (SB 94, Calderon).2The full text of this disclosure is as follows: It is notnecessary to pay a third party to arrange for a loanmodification or other form of forbearance from yourmortgage lender or servicer. You may call your lenderdirectly to ask for a change in your loan terms. Nonprofithousing counseling agencies also offer these andother forms of borrower assistance free of charge. Alist of nonprofit housing counseling agencies approvedby the United States Department of Housing andUrban Development (HUD) is available from yourlocal HUD office of by visiting www.hud.gov.925.790-2600 • info@amllp.com • www.amllp.comNicole M. Mills, Esq.Mediation ServicesSpecializing inElder and Civil MediationpMills ADR Services(925) 351-3171nicolemillsesq@yahoo.comContra Costa Lawyer 13

Concurrent Morning Seminars9:45 – 11:45 am • Registration 8:00 – 9:45 am2009 MSpectaFriday, NovembWalnut Creek MSEMINAR #12 hours MCLE creditSEMINAR #21 hour SubstanceAbuse & 1 hourGeneral MCLE creditSEMINAR #32 hours EthicsMCLE creditSEMINAR #41 hour Ethics & 1 hourGeneral MCLE creditSEMINAR #52 hours MCLE creditSEMINAR #61 hour Eliminationof Bias & 1 hourGeneral MCLE creditThe Revolution in No Contest Clausesco-sponsored by CCCBA & its C/G/P/T SectionSpeakers:Andrew Zabronsky Esq., Evans Latham & CampisiNeil F. Horton Esq., Horton & Roberts LLPSubstance Abuse in the Legal Workplaceco-sponsored by CCCBA & its Employment SectionSpeakers:Gary Gwilliam Esq., Gwilliam, Ivary, Chiosso, Cavalli, & BrewerDouglas J. Farmer Esq., Ogletree Deakins, PCDavid A. Depolo Esq., Moderator Donnelly Nelson Depolo & MurrayProtecting Your License: The State Bar’s Top 10 List ofCurrent Ethics Developments and Disciplinary TrendsSponsored by CCCBASpeakers:Carol Langford Esq., Bob Hawley Esq., State Bar of CaliforniaRunning a Law Firm: Tips and Tricks for Solos and Small Firmsco-sponsored by CCCBA & its Solo SectionSpeakers:David S. Pearson Esq., Law Offices of David S. PearsonDorianne Romero Plihon Esq., Romero Plihon Law Offices, P.C.William A. Hickey Esq., Law Offices of William A. HickeyIs Everyone a Narcissist ... or Just Borderline?co-sponsored by CCCBA & its Family Law SectionSpeaker:Randy Kolin Psy.D., Certified Forensic Psychologist & Custody EvaluatorA Forum to Explore the Cross Currents and Impact ofCultural Diversity in Mediation and Advocacyco-sponsored by CCCBA & its ADR SectionSpeakers:Claudia Viera Esq., Mediation Law Offices of Claudia VieraClark Freshman Professor of Law, Director of Training, Paul Ekman GroupYolanda Jackson Diversity Director, San Francisco Bar AssociationMalcolm Sher Esq., Sher & Minnard, Jessica Notini Esq., Notini Mediation Services— bREAKFAST kIC1 hour Ethics MCLE8:30 – 9:30am (Registration$40 CCCBA & ACBA membersBob LadouceDe La Salle High School F“Reflections on Ethics,and Filling the Pi— Concurrent Mornin$60 CCCBA & ACBA members*— lUNCHEON1 hour General MCLE12:00 – 1:30pm (Registration$50 CCCBA & ACBA membersPhyllis W. ChDirector, Department of Fair Emp“FEHA’s 50th AnnCivil Rights Past, Present— Concurrent aFTERnO$60 CCCBA & ACBA members*— pLENARY SESS1 hour General MCLE4:00 – 5:00pm (Registration 8$35 CCCBA & ACBA membersJohn ChianCalifornia State Con“California’s Fiscal SituReforms Needed to Bring U— fULL-dAY pACbreakfast, lunch, one am and one pm semi$175 CCCBA & ACBA members / $100 CCCBA Law*CCCBA Law Student Members pay $2Sponsored BADR Services, Inc. • JAMS • LiffeyLivHOME • Marsh Global Consumer • TFor more information, contact Michele Vasta, 92The Contra Costa County Bar Association is a State Bar of Califo

9 MCLEtacularNovember 20Creek MarriottFAST kICKOFF —Ethics MCLE creditegistration 8:00 – 8:30am)A members / $50 non-membersLadouceurigh School Football Coachn Ethics, Competitioning the Pipeline”Morning Seminars —A members* / $80 non-membersNCHEON —eneral MCLE creditegistration 8:00 – 11:45am)A members / $75 non-memberslis W. Chengof Fair Employment & Housing50th Anniversary:st, Present and Future”FTERnOON Seminars —A members* / $80 non-membersARY SESSION —eneral MCLE creditgistration 8:00am – 3:45pm)A members / $40 non-membershn Chiangia State Controlleriscal Situation and theo Bring Us Back on Track”dAY pACKAGE —ne pm seminar, afternoon plenary sessionCCCBA Law Student members / $275 non-membersembers pay $20 per two-hour sessiononsored ByS • Liffey Network Solutions, Inc.nsumer • The Recorder • Toshiba • Westle Vasta, 925.370-2548 or mvasta@cccba.orgtate Bar of California MCLE approved provider. (Provider #393)Concurrent afternoon Seminars1:45 – 3:45 pm • Registration 8:00 am – 1:45 pmConflicts of Interest, Avoiding 3D(Disqualification, Disgorgement, Discipline)co-sponsored by CCCBA & its Litigation SectionSpeakers:Paul W. Vapnek Esq. Townsend and Townsend and CrewKathleen M. Ewins Esq. and Joseph P. McMonigle Esq., Long & Levit LLPDe-Risking the Small Firm Law Practice: Risk Management & Insuranceco-sponsored by CCCBA, its Solo Section & Marsh Global ConsumerSpeakers:Paul Dorroh Sr. Vice President, Marsh Global ConsumerSeabury & Smith Insurance Program ManagementClash of the Titans: Bankruptcy’s Affect and Impact on ADRco-sponsored by CCCBA & its Commercial Law & Bankruptcy SectionSpeakers:David Katzen Esq. Katzen & Schuricht, Lester Levy Esq., JAMSHon. Lisa Fenning Ret., Former Bankruptcy Court Judge, Linda DeBene Esq. JAMSHon. Terence Bruiniers Associate Justice, First District Court of AppealFrom Capacity to Confabulation:Elder Law Considerations in Mediation and Litigationco-sponsored by CCCBA & its Elder Law SectionSpeakers:Hon. Mary Ann O’Malley, Hon. Joyce Cram, Hon. Norman Spellberg Ret.Jerome Fishkin Esq., Vivian Clayton PhD, Ronald K. Mullin Esq.The Effective Appeal: Putting Punch in Your Briefs & Oral Argumentsco-sponsored by CCCBA & its Appellate SectionSpeakers:Justice Mark Simons, First District Court of AppealJustice William Stein Ret., First District Court of AppealProfessor Myron Moskovitz Esq., Golden Gate University Law SchoolKevin Brodehl Esq., Morgan Miller BlairThe Intersection of Work/Life Fit and Law Sustainabilityco-sponsored by CCCBA & its Women’s SectionSpeaker:Tammy Dawson Esq., Co-Chair, Queen’s Bench Work-Life Balance CommitteeSEMINAR #72 hours Ethics MCLE creditSEMINAR #82 hours MCLE CreditSEMINAR #92 hours MCLE creditSEMINAR #101 hour Ethics & 1 hourGeneral MCLE creditSEMINAR #112 hours General MCLEcredit (including AppellateSpecialization)SEMINAR #121 hour Elimination ofBias & 1 hour GeneralMCLE credit

Question manWhat is the most creative solutionyou have been part of during a mediation?The most creative solution as a mediator ina team mediation at the workplace involvedthe agreement written on the large whiteboard paper, each section drafted in a differentmarker color and signed byeach participant. They then agreedto frame it and put it up in their breakroom as a daily reminder of theirwritten commitments to each other.Jessica A. BravermanBraverman Mediation & ConsultingAfter a contentious several hours, with theparties $100,000 apart, Tim Halloran(Murphy, Pearson, Bradley & Feeney) askedmy client to tell her version of the story.She spoke for 30 minutes. He listenedwithout interruption, then suggested webreak for lunch. The client kept repeating,“he listened to me, he listened to me.” Atthe end of lunch, she said, “time to get onwith my life and leave this ugliness behind.”So she went in, accepted the offer,went home happy, and keeps tellingall of her friends that I am a greatlawyer. Thanks Tim.Jerome FishkinFishkin & Slatter, LLPThe most creative solution I’ve experiencedduring a mediation was when my clientsaid he was sorry. It was the first timeanyone in the process had apologized tothe plaintiff. I felt like I was going outon a limb in doing so, but it got uspast a sticking point that money couldnot address.Joseph M. NykodymRyan & LifterA method I’ve been using for years whenit finally gets down to the equalizing paymentor some other lump sum dollaramount: Each side puts their absolute bestposition in an envelope and seals it. Aneutral third party (not the mediator) isengaged to open the envelopes. If the twopositions are within, say, 10% of each other,the difference is split and thatbecomes the settled amount.If they are not within the 10%range, the neutral destroysthe offers and no one (noteven the mediator) knowswhat the bottom lines were.Donal Casey CumminsCummins, Holmes & GeraldiIn a mediation involving anun fair business practices claim,the defendant requested a broadscope anti-disparagement provision.Plaintiff refused. Inexploring the matter further,defendant expressed a concern aboutnegative comments that could be posted onthe internet (blogs, yelp, etc.). A compromisewas reached. The plaintiff agreed not to poston the internet any negative commentsconcerning defendant either by plaintiffhimself or by others at the plaintiff’s directionor request. This limited scope antidisparagementprovision satisfied thedefendant’s need and a resolution followed.John S. WarnlofSolo, Walnut CreekIn an estate battle, three children disagreedabout who would get their deceased father’sBuddha statue. Finally one of them suggestedthat they take turns, each havingpossession for one year. They got excitedabout seeing each other to “pass the Buddha.”Simple, yet elegant.Tom CainLaw Office of Thomas W. CainArlene SegalLaw Offices of Arlene SegalLitigation - MediationTrust and Estate Disputes • Financial Abuse100 Pringle Avenue, Suite 780 • Walnut Creek, CA 94596telephone (925) 937-4224 • fax (925) 937-4273— Wanted —ConservatorshipsthinkMatt Tothas inPedder, Hesseltine,Walker & Toth, LLPoldest partnership in Contra Costa County(52 years)p 925.283-6816 • f 925.283-36833445 Golden Gate Way, P.O. Box 479Lafayette, CA 94549-0479AV Martindale-Hubbell16 November 2009

I once defended a case where theinjury was largely an affront tothe plaintiffs’ dignity. I usuallydo not like joint sessions in amediation, but in this one, it wasessential. We began by lookingthem in the eyes and apologizing. Aletter of apology signed by my clients waspart of the eventual settlement.Robert SeedsGreenan, Peffer, Sallander & Lally, LLPIn a child guardianship case, the partiesagreed on the following arrangement. Thefather had to visit his child in a public place.The guardian said, “Well, every Tuesday thechild and I go to the BN for reading time.”I inquired about what this was. The guardianexplained that every Tuesday evening,he and the child went to the Barnes andNoble bookstore, where the guardian couldread to the minor! It solved the issue of aplace to visit very nicely.Barbara ProctorConflict Resolution ProgramI had a very interesting experiencein a mediation involving a real estatedispute between two families froma culture other than American. Thematriarch of one family indicatedthat the matter would resolve byway of a meeting in their home, not in thecourthouse. I had to explain that inasmuchas this was the day of trial, the judge wasnot going to simply let them go home andmaybe resolve the dispute later. I askedboth families if the meeting could occurright then and there, in the jury room;they agreed. I asked the lawyers to allowtheir respective clients to speak directly,without the lawyers present, but with memoderating the discussion; they agreed.The families met, and discussed their differencesentirely in their native language.I sat in the room, unable to discern anythingexcept by evaluating their body language.During the discussion, both matriarchsshed tears as they spoke. Suffice it to say,the case settled.Dave MillerMiller|MediationRoger F. Allen510.832-7770Ericksen, Arbuthnot, Kilduff,Day & Lindstrom, Inc.155 Grand Avenue, Suite 1050Oakland, CA 94612rallen@eakdl.comStandards • Strategies • Strength • SolutionsWELL PREPAREDto handle your complex business transactionsDoug Maggi, SVP925.944.0180 ext. 209Bob Kouba, VP925.944.0180 ext. 212Northern CaliforniaMediator / ArbitratorColleen Benatar, VP925.944.0180 ext. 21514 years as Mediator23 years as Arbitrator31 years in Civil Practice• Training includes Mediation Course atPepperdine University 1995• Serving on Kaiser Medical MalpracticeNeutral Arbitrators Panel• Settlement Commissioner, Alameda andContra Costa Counties• Pro Tem Judge, Small Claims, Alameda County• Experienced in all areas of Tort Litigation,including injury, property damage, fire loss,malpractice, construction defectRick Wise, EVP925.944.0180 ext. 216California’s OldestIndependent Bankwww.scottvalleybank.comWALNUT CREEK 1500 N. California Blvd. • 925.944.0180Oakland , 1111 Broadway, 510.625.7850 • Santa Clara • 5201 Great America Pkwy., 408.653.1200Take advantage of one of the manyCCCBA membership benefits!To schedule an appointment witha CCCBA notary, please callBarbara Tillson, (925) 370-2544704 Main Street • MartinezFree Notary ServicesContra Costa Lawyer 17

Ethical Risk Areas for MediationConflicts of InterestClient AuthorityClient Expectationsby Linda DeBeneConfidential CommunicationsNegotiation StrategiesWe all see it. It is so commonplace that most of us do not blink an eye. It seems that just about every day there is anothernews article about it — ethics (or lack thereof) in or related to the law. Unethical judges throwing cases, taking money,acting out in courtrooms, harassing staff; politicians involved in unethical behavior in their official / personal lives;unbelievable Ponzi schemes that run rampant over legal ethics/accounting rules; foreclosure counselors (including lawyers)taking money from the disadvantaged for promised services that are never performed; “trusted” sons / daughtersabusing elderly parents aided by intentional unethical/illegal acts of attorneys / accountants. Ethics is front page news.While it is ADMittedly RAREto see a news article about ethical dilemmasfaced by mediators in daily practice, theyare more common than one would think.Bearing in mind that mediators are leftalone to resolve issues relating to “ethicalconflicts” raised as a result of acts ofcounsel vis-a-vis their clients or opponentsin mediation, it is important to alertpractitioners to some of these issues inlight of the current ethical (or unethical)climate de jour.Most mediators typically see (andcan handle with relative aplomb) skillsdilemmas — knowing how to implementaction in a mediation setting but not beingcertain about the effect it may have —while ethical / moral conflicts arise moreinfrequently. In the latter instance, themediator is uncertain as to how to implementor choose a course of action withoutdoing harm, possibly unwittingly, to anopposing party involved in the conflict.A mediator, for example, is presented withuse of mediation by a party solely to gaininformation, win time, or intimidate.Consider being at mediation in privatecaucus and one side’s attorney commentsthat s/he has no authority, adding “we areat mediation purely to see how low theother side will go.”What are some typical issues presentedto the mediator by such actions of counsel?Of course one thinks immediately of abuseof the process or lack of good faith negotiation,obvious first complaints raised bythe opponent. However, failure to followdirectives of a mediator or court for personalattendance of representatives withsettlement authority can be the thorniestproblem a mediator faces. Courts makerules about attendance, but rarely act toenforce them. So what are mediators todo? In light of counsel’s conduct (ethical?not ethical?), what course of action isproper for the mediator to take?The obligations of counsel making sucha statement are ethical minefields. Privatecounsel usually bring a client with authorityto decide, but often without money topay. Insurance counsel are supposed torepresent the client, but have seriousconflicts with loyalty. Many carriers havecaptive / house counsel, or outside insurancecounsel, with a potential desire formore / continued business from carriers.Thus, for example, they do not push hardenough to have carrier representatives atthe sessions, or they have written liabilityreports that lean in favor of “no liability”reporting, resulting in small or no reserves.So who is being served?Dealing with such ethical conflicts callsfor a skill set that often goes beyondtypical mediation training. Procedurally,ethical conflicts have to be analyzed bythe mediator on the spot, considering firstwhether the mediator is a judicial or quasijudicialofficer (pro-tem or referee withpower to conduct settlement conferences).The mediator then has to decide whetherany reporting can be done to the courtunder California (or applicable federal)statute or rule, or by stipulation of theparties. Or, alternatively, is the mediatoronly a passive facilitator — the “hallmonitor” — moving information backand forth without any “hammer” or18 November 2009

procedure available to deal with theannounced “no authority” position?Unfortunately, under current Californiastatute and case law (not being able toreport to the court [Evidence Code §§1119and 1121] and being incompetent totestify [Evidence Code §703.5]), mediatorsare left with no means to resolve theethical conflict, leaving the ability to aidresolution of the case as a standoff.Another area of ethical conflict involvesthe maintenance of confidentiality in casesinvolving illegal actions of parties. Onemight easily imagine being asked to mediatenegotiations between a bank robberor terrorist, his / her hostages and police(think Al Pacino in Dog Day Afternoon).Clearly, an unfair settlement is shapingup, an imbalance of power. The emotionalityof the process and the probability ofharming parties or innocents if an agreementis not reached could rise or fallbecause of confidential information that isor is not disclosed, or which is improperlydisseminated, albeit with good intentions.Not reaching agreement in such a circumstance,thereby not solving the parties’problems, increases the probability ofharm to parties/innocents. The mediator’shands in solving the ethical/moral conflictthat arises are tied by the confidentialityprovisions of California law.Consider a more common scenario: thegovernment exercising its right of eminentdomain to demolish the home of a poorperson (that cannot be replaced in thecurrent market or even in a good market)to build a shopping center proposed by abillionaire developer, taking property forpersonal gain of the developer’s privateinterest. The mediator is presented anethical conflict when one counsel insistson non-disclosure of the settlement (nondisclosuremay convince a party to acceptthe proposal) and the government musthave it publicly approved.Ethical conflict situations face mediatorsevery day in common practice as aresult of emotional reactions to partybehavior at mediation (sympathy, antipathy,anger); lack of informed consentbetween parties and their counsel due toparty ignorance of factual, legal or expertinformation; coercion or mental disturbance— all matters typically unknown tothe mediator. One typical situation leadingto such conflict: a mediator sees an attorneywithout specific “practice knowledge” whohas had a dispute with the client over whatthe client wants out of mediation. Maybea worker compensation specialist doing afavor for a friend or family member ishandling an employment case. The lack ofemployment practice expertise may leadto the otherwise competent counsel notbeing able to properly analyze the case,resulting in the client attending mediationwith unreasonable expectations.Similarly, an “out of practice area”attorney advises the mediator for the firsttime at the mediation session of a realestate case that he “never talks about uContra Costa Lawyer 19

Glenn & Dawson LLPCertified Public AccountantsDonald A. GlennCPA, ABV, CVA, CFE, CFFLeslie O. DawsonCPA, ABV, CVA, CFFSpecializing inLitigation Support – family lawBusiness ValuationsProbate and EstatesFinancial InvestigationsAudit Tax and Accounting Servicesfor individuals andprivately owned companies.323 Lennon Lane, First FloorWalnut Creek, CA 94598Telephone (925) 945-7722Facsimile (925) 932-1491Mark V. MurphyPersonal InjuryReferrals RequestedOver 25 years experiencerepresenting injury victims.Practice dedicated solely toPersonal Injury.Each client given prompt,courteous attention.Antioch andSan Ramon Offices925.552.9900money with the client present.” Clientand counsel are already in a direct ethicalconflict because the mediator is beingasked to keep the client shielded frompotential downsides of the case.Expectations of levels of candor for thedialog that occurs at mediation vary. Inmany instances, the mediator can facilitatethe mediation in the face of varying levelsof candor. But in some instances, themediator cannot, as the spectrum runsfrom total candor to active misrepresentations.Mediator expectations differ fromthose of attorneys, clients and relatedclaims rep resentatives. Mediators desirehonest assessment of wants, needs, limitationsand negotiation vulnerabilities ofeach party. Mediators expect attorneys tohave analyzed the facts, law and risks sothat they can answer questions like: “Whatis the worst issue/fact in your case?” “Whatis the best issue/fact of your opponent’s case?”Mediators who prefer complete candorwill understand this is not possible all thetime, but getting to candor is a challenge,especially when the client has been keptout of the factual / legal / expert loop.Ethical conundrums are often seen inwants and needs of the clients. Clients donot want a win-win — they want to crushthe other side. Conversely, some counselwant only to gather information, and arereluctant to settle too early and give upthe ability to bill the case or search for (andrarely find) the “smoking gun.” Carriersin this current economic climate are notonly reluctant to settle early, but havebecome insistent that every “I” be dottedand every “T” crossed before dollars moveoff the asset side of balance sheets. Thenadd ethical problems created for defensecounsel by carriers — counsel who aredirected by carriers but supposedly representingthe client. This atmosphere ispotentially harming to the client, andplaces counsel in a no-win position.The appropriate division of authoritybetween attorney, client, and carrier representativeat mediation presents ethicalconflicts as to who controls whether settlementhappens or not. ABA Model Ruleof Professional Conduct 1.2 states thatthe attorney “shall abide by a client’s decisionsconcerning objectives of representation ... andconsult with the client as to the means by whichthey are pursued.” Though California attorneysare not bound by the Model Rules,from a standard of care position, counselshould take into account whether theywill be required to abide by whatever theclient says, and how that will conflict withthe attorney’s obligation of competence.Here again, Model Rule 1.1 provides thatan attorney “shall provide competent representation:legal knowledge, skill, thoroughnessand preparation reasonably necessary for therepresentation.” Counsel serving multiplemasters (attorney plus client plus carrier)can lead to breakdowns in an otherwisecalm stream of camaraderie, coverage issues(an impossible dilemma when the standardposition is that the insurance defenseattorney is not to know about or handlethem), and lack of fully informed consenton the part of the client relating to settlementwhen the client has no personalcounsel or coverage counsel present.This article was authored to “open thekimono” on this ethical conflict topic. Itis not exhaustive on the subject. Yourauthor encourages mediation professionals,counsel or carrier representatives tocommunicate actual conflict situations (ofcourse in hypothetical form) and successfulsolutions, or comments for furtherdiscussion / article. Every mediation isdifferent. Each solution to an ethicalconflict must fit the case. Exchange ofthought and ideas on how to ethicallytiptoe through conflict while serving theinterests of the participants is a goal towhich we can all contribute. u— Linda DeBene is amediator, arbitrator andspecial master with JAMS- The Resolution Experts,specializing in real estate,construction and businesscommercial matters. She hasbeen an ADR professionaland court-appointed neutral since 1986, and a legalprofessional in California since 1978. She has recentlylectured locally, and written for national and localpublications on subprime issues. Please send commentsor information to her at ldb-esq@pacbell.net.20 November 2009

Why you should make referrals to CCCBA’sLawyer Referral & Information Service!Our LRIS is the only State Bar certified (certification #0018) andAmerican Bar Association approved lawyer referral service in our countyLRIS has been providing quality referrals as a public service since 1978LRIS panel attorneys are required to meet specific experience requirements as a prerequisite to joining the serviceEvery LRIS attorney is required to carry malpractice insuranceLRIS has an experienced, friendly and knowledgeable staff to assist youIf you have any questions or would like more information, please contact the LRIS staff at 925.686-6900.If you’re interested in joining the LRIS, please contact Maria Navarrete, LRIS Coordinator, at 925.370-2542or go to “Join the LRIS” under “Member Resources” at www.cccba.org.Contra Costa Lawyer 21

22 November 2009

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Pro BonoSpotlightThomas William CainNervous plaintiffs and defendants sit in court waiting for their small claims matters to be called. Before their matters are heard, however,they are told that the court would like them to try mediation. Are they familiar with this process? Many shake their heads “no.” The courtexplains the basics of mediation and points to the experienced mediators at the back of the courtroom. These are the volunteers from theCongress of Neutrals, and they are there to help the parties resolve their disputes without resorting to a hearing before the court. For many, itwill be their first exposure to mediation. • The Congress of Neutrals, run by Tom Cain and a Board of Directors, is a volunteer organizationthat coordinates mediation for the Contra Costa Superior Courts. Nicole Mills sat down with Tom to learn more about the Congress.How did the Congress of Neutrals get started?It grew out of comparative law study andan ADR survey on which I worked from1995 to 1998 around the Bay Area. It’samazing how “local” law varies — ADRreferrals and protocols differ from courtroomto courtroom and county to county.The Congress was incorporated in 2000.In 2001 we met with Superior Court benchofficers and Contra Costa ADR officers toplan mediation referral protocols, designforms, and discuss cases suitable and notsuitable for mediation.What ADR services does the Congress provide?For the Superior Court, the Congress providesmediators for small claims cases, civilharassment cases and unlawful detainers.We also maintain a panel of experiencedmediators, arbitrators and neutral assessorswith a variety of professional backgrounds.The trick is to match the professional/mediator to the dispute and disputants.What is the typical number of mediations theCongress conducts for the court each year?The use of mediation in the Superior Courthas increased year after year. In 2003, forexample, we conducted 98 mediationsfor Contra Costa County. In 2007, we did848 mediations. We continue to look forevery opportunity to use ADR to help theparties resolve their disputes on their ownand decrease court’s case load.How does the Congress develop newmediators and volunteers?The Congress is committed to providingquality mediators to aid the parties andthe court. To that end, we are constantlytraining and retraining. We have aMediation Mentoring Program (MMP)that matches up new mediators with amentor — an experienced mediator — towalk and talk the trainee through his orher first mediation, to get positive feedback,and to provide experience.What other training does the Congress offer?In addition to MMP, we offer a 40-hourmediation training, which is designed toprovide the initial training that allmediators require, as well as a 25-hourmediation training. For mediators whohave already had their 40-hour training,we offer advanced mediation training andspecialized training in elder law mediation.For municipal agencies, we have speciallydesigned training and conflict managementtraining. Finally, for the legal communityin general, we offer various MCLEprograms throughout the year.What about programs to reduce workplace conflict?The Congress provided training to KaiserPermanente over a four-year period. Wedesigned training and dispute resolutionreferral systems to help line workers, em -ployees and managers spot problems andresolve them in place before they escalate.The Congress deals largely with self-representedlitigants. How does that affect the waymediations are conducted?How to conduct effective and ethicalmedi ations with a self-represented litigant(SRL) is one hot topic. When can / shouldthe mediator do evaluative-style mediation?What limitations should be inplace on an evaluation if the SRL has notconsulted with an attorney? Obviously,evaluation by a mediator / attorney ishelpful if it gives the SRL the opinion ofone legal professional. But how informedis that opinion? Does the mediator/attorney really know the facts or understandthe evidence? How can you remainneutral under these circumstances?Doesn’t the SRL rely too heavily on theopinion of the mediator / lawyer? Theseare all considerations that must be takeninto account when mediating with an SRLthat are not always present when theparties are represented by counsel.24 November 2009

Contra Costa has a reputation as beinga leader in ADR. Why?There is much more to this story than Ipersonally know. Probably because offorward-thinking bench officers who, inthe late 1980s, thought outside the box.James Marchiano, Ellen James and otherswere able to develop an excellent ADRprogram. Bench officers supported thisnew ethic. There was also a great menuof ADR choices available — neutralevaluation, early intervention, etc.The ADR community in Contra CostaCounty has also been a leader in expectingits members to provide a high quality ofservice. Between the court, the Congressand the ADR Section of the Bar Association,there are numerous opportunitiesfor practitioners to continue to learn andimprove their skills through mediationprograms, trainings and MCLE.There is also a county service ethic ofgiving the first two hours free, which notonly encourages the parties to avail themselvesof the various choices of ADR, butreaffirms the commitment of service thatthe ADR community in Contra Costa hasalways had. Finally, the ADR office helpswith its lists of ADR panel members andtheir experience in various subject areas.In my limited view, few counties have thislevel of service and commitment.How is mediation in Contra Costa Countydifferent from other counties?Contra Costa County is a leader, not justin ADR but in its commitment to accessto justice and public education. The onlineself help law center is great. There areother leaders — Gloria Sanchez (SmallClaims Advisor), Magda Lopez (ADRDirector), Mimi Lyster (Court Planning)and others — who are forward-lookingindividuals. The bench and bar may notbe fully aware of the strong commitmentthis county makes to educate its citizensas to this participatory type of justice.Court-annexed ADR invests in citizensand models behavior that shows a betterway of resolving problems. uContra Costa Lawyer 25

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