Profile

Experience

  • Associate Attorney, Law Office of Alred R. Naphan 1972-1978
  • Co-Founding Partner, Gwilliam, Ivary, Chiosso, Cavalli & Brewer (1978-2000), Oakland, California, Managing Partner 1988-2000
    Tried all types of personal injury cases, employment cases, medical and hospital negligence as well as insurance bad faith.

Alternative Dispute Resolution (ADR) Experience

In the past 15+ years, Mr. Ivary has mediated nearly 1,000 cases involving:

  • Personal Injury / Products Liability
  • Employment (wrongful termination, retaliation, age & gender discrimination)
  • Public Entity Liability, including school districts
  • Civil rights, discrimination of all types, police misconduct
  • Insurance, including arbitration of UM/UIM cases
  • ERISA, both disability claims and employer contribution liability
  • As well as 12 years’ experience on the Northern District panel for ADA cases involving disability access, architectural barriers for all types of commercial establishments, including nationwide corporate policy for institutions such as hospitals, and also cases involving service animal access and related issues.

Served as Judge Pro Tem for the Superior Courts for three Bay Area Counties since

Mediator for the United States District Court ADR Program in the fields of Employment, Federal civil rights, Medical Malpractice, ERISA, ADA, Maritime and Federal Tort

Panelist for all the Alameda County Settlement Programs (since 1985).

Panelist for the Contra Costa County Courts programs (since 1991).

Panelist for San Mateo County Courts MAP Program (since 2008).

Panelist for Santa Clara County Court

Education

  • B.A., Saint Mary’s College of California, 1968
  • J.D., University of Santa Clara, 1971
  • Admitted to State and Federal Courts, 1972
  • Continuing Education requirements met in all fields, including Advanced Mediation Training for both State and Federal courts

Mediation Training

  • Initial training through San Mateo, Contra Costa and Alameda County court sponsored ADR Programs (MAP, EASE, SMART and TOT programs)
  • 40 Hour Intensive Mediation Training course taught by Nancy Yeend (2001)
  • 20 Hour US District Court training program
  • Multiple CLE programs on a variety of topics, as well as regular updates on specific mediation issues on interest (including confidentiality, changes in the law,)

Past & Present Professional Associations

  • Mediation Society
  • Northern California Mediation Association
  • American Board of Trial Advocates, inducted 1989
  • American Inns of Court, Wiley Manuel Chapter, Senior Mentor, 1999-2000
  • Association of Trial Lawyers of America, (Advocate, National College of Advocacy)
  • Alameda-Contra Costa Trial Lawyers Association
    • Board of Governors, 1975-1990
    • Editor of The Verdict, 1986
    • President, 1990
  • Alameda County Lawyer’s Club

Awards & Honors

  • Lawyer of the Year, Alameda County Lawyer’s Club,
  • Selected as Evaluator by the CEB Trial Advocacy
  • State Bar Commendation for Outstanding Contributions to Pro Bono and Voluntary Legal

Publications

  • Mediating with the Difficult Plaintiff
  • Medical Malpractice Jury Instructions
  • Punitive Damages in Employment Cases
  • Invited Panelist and Speaker to Employer Groups and Panelist for Employment Law

Mediation Approach

  • The best description of my approach to mediation is “facilitative”. But experience has taught me to do what works and not get too caught up in theory or the academic side of mediation. My goal is to get the case in a position where the parties can see a clear path to settlement.
  • My approach varies because no two cases are alike. For example, an employment case can be very sensitive to the parties involved as can a police misconduct case or a medical malpractice case. Probably the best way to describe my approach to mediation is that I  do everything in my power to be sure that the parties are dealing with their REAL case, not the one they wish they had. This often involves asking both sides a lot of questions, sometimes uncomfortable ones. (The tough questions are asked in separate sessions).
  • When parties request I will become very active in their negotiations. For a full explanation of my mediation style and philosophy, please download an article I wrote for the SFTLA magazine. It can be found at the ADR website (www.adrservices.org). Although originally written as a practical guide for the plaintiff’s bar, it also tells the defense how I approach mediation. My mediation style is also described in an article published in The Recorder in 2005 entitled, “Love Thy Enemy”. This article can also be downloaded from the ADR Services website. References, both plaintiff and defense, can also be found at the same site.
  • My assumption in mediation is that the parties are there to get their case settled, not just have a discussion or use the process as a discovery vehicle. I view the process as a “time out” from the litigation and an opportunity to identify the REAL case.
  • For mediations, there is no record of course and I work with little formality. As long as the attorneys agree, anyone can speak, not just the lawyers. I insist on civility but I am very sensitive to what the parties themselves want the process to be.
  • I discourage “opening statements” and oral arguments. My theory is that the briefs should adequately cover the parties’ legal positions and opening statements and arguments only reinforce entrenched positions and don’t help settle cases.
  • In my opinion, mediation should not resemble what we experience in court. Trial is always an option if you don’t settle your case. I don’t try to tell the defense about the “cost of defense” or tell the plaintiffs the “might lose their case”.

Representative Cases

Employment

  • Female clerical employee claimed her employers gave her unwanted massages including full body massages. She was employed for three months, took time off and finally left her employment. She claimed emotional distress, no wage loss claim.
  • A 38-year-old veteran elementary school teacher with multiple sclerosis claimed the district failed to accommodate her disability, forcing her to retire.
  • Female Employee of manufacturing plant terminated during probationary period claiming less qualified male counterparts were retained. Low 6 figure settlement confidential.
  • Teacher / Coach fired by School District for cause due to alleged inappropriate behavior with female students. $50K settlement.
  • Antique store employee claimed he was a partner not merely an employee. Sued for an accounting. High 5 figure settlement.
  • 28 construction workers joined as Plaintiffs discrimination case alleging various theories, including Failure to hire, wrongful termination / race discrimination. Case complicated by insolvency of principal employer leaving Project owners and general contractor as Defendants. Confidential Settlement.
  • Low 6 figure settlement for an Elementary School teacher who claimed she was harassed and constructively terminated for reporting an incident of clergy abuse in her past.
  • $80K settlement for a male job applicant who claimed he was not hired when Interviewer perceived that he was gay.
  • Low 6 figure settlement for a Female employee terminated when Employer perceived that she was pregnant. Employer denied that was the reason, suggesting there were performance issues.
  • Confidential high 6 figure settlement for a Departing Corporate Officer who claimed he was owed an additional million dollars in compensation while the Board claimed he committed misconduct and was overpaid.
  • Low 6 figure settlement for a Female employee who claimed sexual harassment, retaliation and constructive termination. Employer asserted performance issues were cause for termination.
  • 5 figure settlement for Female mid-level manager who claimed her employer failed to accommodate her digestive disability and retaliated against her when she complained. Employer claimed it did everything possible to accommodate her limitations.
  • Mid 5 figure settlement for Night shift employee of a mass Transit Employer who claimed he was being intentionally harassed and endangered by day shift managers and claimed Constructive termination. Employer claimed the offensive acts were committed by peers and, if they occurred at all, were trivial in nature and that he simply left on his own.

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Personal Injury / Products Liability

  • Intersection accident, in which defendant had $100K policy. The case settled within $100K contribution by the insured.
  • 7 figure confidential settlement for a laborer injured by an Exploding steam valve resulting in severe brain injury. Multi-Defendant case complicated by gaps in insurance coverage, conflicting indemnity agreements and workers Compensation Lien.
  • 350K settlement for a High School student’s mother who tripped and fell on outdoor makeshift steps while attending daughter’s tennis match. The fall resulted in disfiguring facial injuries.
  • Confidential low 6 figure settlement for a Plaintiff who accidentally cut off 2 fingertips while using a table saw for a home improvement project. Plaintiff claimed the saw was defective because, although it came with a safety guard, the guard was removable and he had removed it. Claimed safer available technology.
  • 50K settlement for a Plaintiff who slipped and fell on a piece of fruit in Defendant’s retail store. Soft tissue injuries.
  • 5 figure settlement for Intersection accident where both vehicles had a stop sign. Case resolved by discussion of physical evidence. No witnesses. Multiple skeletal injuries.
  • Low 7 figure settlement for unemployed Mental patient ejected from the back of ambulance during transport from one hospital to another. Duty to restrain disputed. Catastrophic injuries.
  • Low 7 figure settlement for a Seaman who suffered disabling back injuries after slipping and falling in a walk-in freezer aboard ship. Maritime law issues.
  • Confidential 7 figure settlement for the family of a Dockworker crushed by container during unloading of vessel. Wrongful death claim. Longshoreman and Harbor Workers’ Act.
  • High 6 figure settlement for a Personal injury and 2 wage and hour cases brought on behalf of three Tree Service workers. Employer had failed to procure Workers’ Comp coverage. Settlement included cash and medical coverage purchased by Employer.
  • Severe dog bite to infant necessitating facial surgery. Dog ownership disputed. Both the purported dog owner and the kennel contributed equally to a 1.25 million dollar settlement.
  • Plaintiff mechanic injured when a Gantry crane collapsed on her and rendered her a paraplegic. Employer settled comp. claim and waived lien with manufacturer paying low eight-figures.
  • $6 million settlement. Wrongful Death for spouse and children of decedent in his fifties making over $100 K / year. Decedent was walking home from a party when he was struck and killed by a drunk driver. Plaintiffs claimed the City was on notice from neighborhood complaints about excessive vehicle speeds. Claimed improper road modifications, road design , lack of sidewalk, unsafe lighting and absent traffic controls. City claimed immunities . City paid $5.650 million and drunk driver's insurance paid $300K and driver contributed $50 K.

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Medical / Hospital / Pharmaceutical/ Malpractice

  • 750K settlement for the Death of a 38 year old unemployed woman due to overmedication during outpatient plastic surgery. No anesthesiologist in attendance. Surgeon fled the jurisdiction. Case settled against physician group.
  • Feeding tube placed in airway instead of stomach. Wrongful death of 63 year old woman. Confidential low 6 figure settlement.
  • Ventilation tube placed in esophagus instead of airway. Wrongful death. Limited economic losses. Mid 6 figure settlement.
  • Medication error by Compounding pharmacy not discovered by Retail Pharmacy. Damages disputed. Main issue was that the patient’s claimed adverse reaction was inconsistent with published side effects. Confidential mid 5 figure settlement.

Civil Rights / Law Enforcement / Public Entity / School District Liability

  • $2.5 million dollar settlement for a high school freshman who was sexually molested by her teacher for over a year. Claimed negligent supervision and failure of mandatory reporters to report incidents of questionable behavior. Damages alleged need for lifetime therapy.
  • $50K settlement for an African American attorney whom Police stopped, detained and briefly handcuffed after shots had been “reported in the area” over the radio with no specific location.
  • High 6 figure settlement for the family of an African American inmate suffocated by correctional officers when his seizures were mistaken for a threat during the booking processing.
  • 800K settlement for an 80 year old woman who was attacked in her kitchen by a Police dog allowed off-leash. Severe tissue and nerve damage to arm.
  • High 6 figure settlement for the spouse of a former gang member placed in a holding cell after exhibiting bizarre behavior at arrest. Over a 6 hour period, the Prisoner hanged himself with a makeshift rope fashioned from his shirt. Claimed he should have been put on a suicide watch. Wrongful death. Immunity issues.
  • Plaintiffs, husband and wife, claimed that State and local Joint task force drug raid erroneously targeted their residence. Occupants claimed Warrants were defective and overbroad. Claimed damages for False arrest / wrongful detention. Emotional distress claimed. No physical injury. Low 6 figure settlement.
  • Mass Transit Police shoot a suspect on a platform after he threatened them by throwing a Bottle. Suspect carrying a knife not visible to officers. Compromise 5 figure settlement.
  • Mass Transit Police stop, pursue and arrest a passenger who ran away when ordered to stop playing loud music. Alleged excessive force. Minor injuries. Mid 5 figure settlement.
  • Mass Transit Police Beat patron with a baton causing superficial bruising. Plaintiff claimed beating was for failing to follow instructions. Excessive force claimed. Mid 5 figure settlement.

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Business / ERISA / Other cases

  • Settled numerous cases involving retail establishments sued over alleged architectural barriers. Handicap Access compliance, Readily Achievable standard, attorneys’ fees.
  • Negotiated numerous settlements involving ERISA issues including Claims by Plan Members for denial of medical/disability benefits. Issues typically included the standard of Review, Delegation of Discretion, the Role of Trustees in determining plan benefits and the determination of offsets for Social Security and Workers Compensation. Other ERISA cases involved Actions by Trustees alleging Underfunded Contributions by Employer, Audits.
  • Real Estate Broker sued Commercial property owner for Commission after backing out of sale at the 11th hour.
  • Commercial Tenant sued for violation of non-compete clause contained in Shopping Center master lease.