Mark E. Fingerman, Esq.

Profile

Professional Experience

Mark Fingerman is a mediator for civil disputes with an emphasis on business, personal injury, real estate, insurance coverage and intellectual property cases. Mark’s mediation style derives from 28 years of state and federal trial practice transformed by a Masters Degree in Dispute Resolution and mindfulness training as a teacher of yoga, meditation and applied contemplative practices, enabling him to offer mindfulness based mediation with an edge.

“Mindfulness” refers to calmly and compassionately engaging the parties and counsel, without judgment, enabling the participants to gain a clear and complete view of the conflict. The “edge” refers to the use of a broad array of mediation techniques, including frank case evaluation as needed, with an emphasis on assisting the parties in making a deal. The goal is to work with counsel to efficiently guide the parties to a durable resolution based on reasons they understand and accept.

As a lawyer, Mark’s clients ranged from institutional to individual, including insurance defense, multinational, government agency, the Republic of France and small business in both simple and complex cases. Mark has been successfully mediating court panel and private cases since 2010.

Areas of Specialty

  • Business
    • All manner of business disputes including: Breach of Contract; Partnership disputes; Fraud; Ownership/Control disputes among owners and third parties.
  • Personal Injury
    • Toxic Tort, Auto v. Auto, Premises Liability, Food Poisoning
  • Real Estate
    • Failure to disclose; Broker liability; Lease Disputes; Landlord/tenant, commercial and residential; boundary disputes; easements.
  • Insurance Coverage
    • Homeowner’s and Commercial General Liability insurance policies.
  • Intellectual Property
    • Trade Secret, Trademark, Unfair Competition

Litigation Experience

  • 2001-2012 Jacobson, Russell, Saltz & Fingerman – Partner
  • 1999-2001 Valensi Rose – Partner
  • 1986-1997 Bergman, Dacey, Goldsmith – Partner

Education

  • 1979 – BA (Philosophy), University of California at San Diego
  • 1981 – JD, California Western School of Law in San Diego
  • 2011 – LL.M in Dispute Resolution, Strauss Institute, Pepperdine Law School

Professional Affiliations

  • State Bar of California
  • United States District Court, ADR Panel
  • Santa Monica Bar Association, Board of Directors
  • Beverly Hills Bar Association, member
  • Los Angeles County Bar Association, member
  • ProVisors, Group Leader
  • Association of Surfing Lawyers

Honors

  • 2009 Chevalier de L’Ordre National du Mérite (Knight of the National Order of Merit), Republic of France

Personal

  • 2010 RYT (Registered Yoga Teacher), Yoga Alliance (Max Strom)
  • 2016 Teacher Training, Mindfulness-Based Emotional Intelligence, by Search Inside Yourself Leadership Institute (Google offshoot)

Representative Cases

Business

  • Breach of Loan Agreements, Fraud, Conversion, Wrongful termination of Executive. Plaintiff had worked as an executive in upper management for Defendants (affiliated companies). Plaintiff made a series of loans to Defendants. Defendants defaulted on some of the loans and terminated Plaintiff’s employment. The case was emotionally charged by the issues surrounding the tort claims. There was strong emotional attachment to certain of the subject events. It took some time to deflect and reduce the emotions on both sides. At the end of the day, to the surprised delight and relief of the parties, the case settled.
  • Breach of Contract and Negligence re: Failure to Develop a Website. Plaintiff operates a web based service provider. Defendants had agreed but failed to produce an operable website in time. Defendants blamed Plaintiff’s lack of cooperation for the failure. The key to settlement was positioning information so that Defendants understood that Plaintiff’s interpretation of the facts was viable and Plaintiff understood the value of discounting its damages to obtain resolution.

Insurance

  • Denial of Coverage – Property Loss (Burglary) Under Homeowner’s Policy. Plaintiffs, brothers-in-law, claimed loss from a burglary of the contents of a home. Plaintiffs claimed the loss investigation and adjustment was improper, including ethnic/cultural bias, and that coverage was otherwise denied in bad faith. Defendant insurer claimed that the plaintiff who lived in the home was not the named insured, plaintiffs provided false or incomplete information on their claims and otherwise failed to present a covered claim. Time was needed to let Plaintiffs vent their concerns about the way they were treated. The case settled in one day.
  • Denial of Coverage – Property Loss (Water Damage) Under Homeowner’s Policy. Plaintiff, a general contractor for home construction, suffered damage in his own home from a burst water valve. Defendant insurer denied coverage under “faulty installation” exclusion. Bad faith denial claimed. Battle of the expert reports was the focus of the factual issues. Devolved into a straightforward dance of the numbers to get it settled, with each side acknowledging the benefit of making a deal, with the bad faith element left untouched and evaporating in the process.
  • Lapsed Policy. A homeowner’s policy had lapsed under which coverage was sought for claim by neighbor for injuries from the insured’s big dog pushing over the neighbor. Insured claimed that he had not been given adequate and effective notice of nonpayment of premiums, and was not told of the lapse of coverage until months into the adjustment of the underlying claim. The underlying claim was settled, with the insurer paying, in a mediation I conducted, followed by a separate session to address the coverage dispute. The coverage dispute settled in one day after allowing time for the insured to absorb the reality of how litigating the dispute would unfold.

Intellectual Property

  • Counterfeiting. Plaintiff’s certification mark used without permission by Defendants. Defendants claimed they did not know of the use and that an overseas manufacturer had applied the mark to goods without Defendants’ knowledge. Defendants initially claimed inability and refused to pay much above nuisance value at the first mediation session. Plaintiff was more interested in protecting its reputation than spending more money than the case was worth if it could not establish willfulness. I subsequently conducted multiple email and telephone calls with counsel over several weeks to eventually get the case settled.
  • False Labeling. Plaintiff produces and sells products nationwide under a well-known trademark. Defendants put Plaintiff’s labels on third party products and sold those products to the public. Defendants’ counsel aggressively asserted technical defenses and Plaintiff was willing to spend more money than was evidently collectible to set an example. After I caucused privately with the two insurance carriers, and with Plaintiff’s company representatives participating from Canada and New York by video teleconference, we got the case settled.

Partnership Dissolution

  • Two partners (“Alpha” and “Beta”), professional services firm, equal ownership. Beta was the mentor of Alpha when they both worked for another firm. Alpha recruited Beta to open their own firm. After a few years, Alpha thought that Beta was chronically underperforming and wanted Beta gone. Beta wanted to stay in the business and was willing to adjust ownership percentages. Case settled with Alpha buying out Beta, with very specific terms hammered out at the mediation as to how the transition would occur.
  • Two principals (“Doc” and “Manager”) in a medical services firm. After years of working for other clinics, Doc was encouraged by Manager to open her own clinic, with Manager covering all the business formation and management elements and Doc focused on patient care. Doc eventually wanted to end the relationship. A formal partnership had never been created. Doc had asked to do so but Manager had held off, expressly wanting to be an employee to avoid personal exposure until the clinic was financially stable. Doc acknowledged that Manager had done a good job setting up the clinic, but Doc was not happy with Manager’s later performance. Manager wanted to be bought out as a “partner” and was willing to fight to get that even though he knew he’d probably lose. The case settled on the basis of fairness, with each side satisfied and relieved at the outcome.

Personal Injury

  • Asbestos litigation. Multiple mediations in separately filed cases with upwards of 20 participants at a time, resulting in settlement between plaintiffs and most of the defendant companies.
  • Auto vs. Bicycle. Liability not disputed. Soft tissue injuries not disputed. Plaintiff, a professional team cyclist, was hit by defendant who drove away from the scene claiming she was not aware of the collision. Although injured, Plaintiff chased her down to get her personal information. Damages were disputed, due to Plaintiff being able to ride after the collision and the unusually high value and technical specificity of Plaintiff’s bicycle. Once the facts were put in perspective of the carrier, a quick dance of the numbers resolved the case.
  • Food Poisoning. Plaintiffs (mother, father, two children) contracted salmonella poisoning after eating chicken purchased from one of Defendant’s nationwide stores. Defendant was self-insured and had a claims manager and defense counsel well versed in toxic tort litigation. Food poisoning claims are difficult to establish. The case settled after I had the claims manager meet the mother and listen to her story, in a brief joint session.
  • Old Man vs. Big Dog. Plaintiff, in his 80s, said he was pushed over by Defendant’s big dog, where they all lived in an exclusive, tight-knit gated community. The dog had a history of running loose and jumping up on people. Some of Plaintiff’s immediate family also lived in the community and were driving the claim. Defendant had an adequate homeowner’s policy, but had allowed coverage to lapse. Emotionally charged neighbor relations issues and insurance coverage issues had to be aired before the numbers could be addressed. Underlying case settled in one day, with a follow up mediation set to address the coverage dispute. That second session also resulted in a settlement in one day.
  • Employee Negligence at Big Box Store. Plaintiff, an independent construction contractor, was injured while loading concrete bags at a big box store, claiming that a store employee, without warning, “tossed” one of the bags to him, causing chronic back injury. The impediment to settlement was that Plaintiff and his family, hard- working victims of a difficult economy, were in financial straits, looking to this lawsuit for relief. Plaintiff appeared at the mediation with his wife and young adult son. The realities of litigation had to soak before real progress could be made on the numbers. Case settled in less than one day.