Mediation is a confidential, non-binding process in which the parties attempt to settle their legal dispute through active participation of a third party (mediator). The trained mediator facilitates communication and works to find points of agreement between disputants in order to reach a mutually acceptable and fair resolution of all or part of their dispute. Mediation differs from arbitration in which the third party (arbitrator) acts much like a judge in an out-of-court less formal setting, but does not actively participate in discussions with the parties. Mediation can be initiated at any time by agreement of the parties, or is sometimes required by the terms of parties’ contract or ordered by the court.
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Arbitration is an adversarial process whereby a neutral arbitrator renders a decision, called an award, after there has been a presentation of evidence. Like a court trial, arbitration may include representation by counsel, pre-hearing discovery, written briefs, examination of witnesses and oral argument. It can be preferred as a means of settling a matter in order to avoid the expense, delay, and acrimony of litigation. Disputes in arbitration can be resolved by a single neutral arbitrator or a panel of three arbitrators (tribunal). When parties submit to arbitration, they agree to be bound by and comply with the arbitrator’s decision, which may later be confirmed and entered as a judgment by the court.
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In Binding Mediation, also known as mediation-arbitration or “med-arb”, the parties attempt to resolve their dispute with the assistance of a mediator, but if they are unable to do so, the mediator “changes hats” and becomes arbitrator, who issues a final and binding award. The parties must first contractually agree to such a simplified process and waive other alternatives. In med-arb the mediator often makes his decision based solely upon what he has learned during the informal mediation process. Since the same neutral simultaneously serves as both the mediator and the arbitrator, prior to scheduling med-arb, parties and their counsel must sign a document confirming their understanding of the process and waiving any conflict that may arise when the same neutral serves as both the mediator and the arbitrator.
A special reference involves the trial court sending an issue raised in a pending action, such as a discovery dispute, to a referee for hearing, determination and report back to the court. Special references are advisory and nonbinding. (Code of Civil Procedure §644(b).) Discovery Referees are commonly used in complex matters where there is a disagreement between the parties relating to the scope and subject matter of discovery. These disputes can be very time consuming and emotional. To improve efficiency, the trial court has the jurisdiction to appoint a referee if warranted by the situation. The process may be “voluntary” or “involuntary” and, in State Court, is governed by the Code of Civil Procedure §638 (voluntary) and §639 (involuntary).
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In a general or judicial reference, a pending court action is sent to a referee to try any or all issues in the matter based upon an agreement or consent of the parties. The hearing is conducted under the rules of evidence applicable to judicial proceedings. The primary effect of such a reference is to require trial by a referee and not by a court or jury. (Code of Civil Procedure §638(a).) In a general reference, the referee prepares a statement of decision which must stand as the finding of the court. The actual judgment is then entered by the trial judge “in the same manner as though the matter had been tried by the court” and is reviewable by appeal. (Code of Civil Procedure §644(a).) A general reference preserves the court’s jurisdiction regarding new trial motions and other post-judgment remedies.
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Private Trials/Temporary Judge
Once an action has been filed in court, parties may stipulate to a “private trial,” which is conducted in essentially the same manner and pursuant to the same procedural rules as court trials. All law and motion matters, discovery disputes and case management conferences, as well as the trial, are heard by the temporary judge.” The main difference is that the parties have agreed to an individual, either a retired judge or attorney, to act as a temporary judge and render a judgment. During a private trial, all original documents must be filed with the court, which maintains the records for the case. The temporary judge is then provided with file-stamped copies of the documents. At the end of the trial, the temporary judge renders a judgment and has the power to hear post-trial motions. A temporary judge’s decision is binding on the parties and can be appealed in the same manner as a court-rendered judgment.
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A “special master” is appointed by a court to carry out some sort of action on its behalf. They may be appointed pre-trial, during trial, or post-trial. In Federal Court, a Referee is called a “Special Master.” They are also appointed as facilitators in family law cases. In construction defect cases, the parties stipulate to have a “Special Master” appointed so he/she can manage pre-trial discovery and facilitate settlement before trial. A Special Master may also be appointed pre-trial to manage part of a particularly complex case involving many parties and issues.
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Invaluable expertise and insight is available from experienced retired justices on our Appellate Panel, who are available to consult with counsel whether the appeal is pending, anticipated or the case is still in the critical post-trial phase in Court. An evaluation of whether there are grounds to pursue an appeal or writ, along with guidance on technical issues, critical legal questions or overall strategy can save time and money and avoid potentially costly mistakes. Obtain a neutral assessment of mock appellate arguments, review and critiques of briefs, development of an effective appellate presentation and more.
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Under California law, agreements providing for “valuations, appraisals and similar proceedings” are treated as agreements to arbitrate. For example, the standard form fire insurance policy requires that any dispute between the insured and insurer regarding the amount of loss be resolved by an “appraisal process” (each party selects its own “competent and disinterested” appraiser; together, the appraisers select a “competent and disinterested umpire” to resolve disagreements between the appraisers). (Insurance Code §2071.)
A mock arbitration is a simulated hearing before a single or multiple member panel conducted pursuant to the same rules and regulations as an actual arbitration hearing. It is designed as a predictive exercise to assist counsel to test the evidence and theories of the case, develop the most persuasive argument and improve the overall presentation. Where appropriate, it can also be a means for familiarizing witnesses with the hearing process and preparing counsel for cross-examination through the use of mock adverse witnesses. The mock arbitration will be tailored to suit your needs, whether thorough and lengthy or succinct and focused. The mock arbitrator(s) will be kept unaware of which side is making the presentation until its conclusion, at which time you will be provided with oral and/or written feedback on the briefs, oral arguments, case presentations, witnesses and exhibits presented. Like mock jury trials in advance of litigation, a mock arbitration is unrivaled by any other method of preparation for arbitration.
Mock Trial/Moot Court
A mock trial is a simulated court trial conducted pursuant to the same procedural and evidentiary rules. Moot court simulates a hearing at the appellate level during which legal arguments are presented to a single or multiple member panel. Counsel preparing for a trial or an appeal may elect to use a mock trial/moot court to test theories, practice presentation skills, and gain feedback from an experienced neutral.
Early Neutral Evaluation (“ENE”)
ENE is a non-binding process in which a third party neutral examines the evidence, listens to the disputants’ positions, and then gives the parties his or her reasoned evaluation of the merits of the case. Early neutral evaluation often occurs early in the pre-trial stage of a case. This informal process helps counsel for each side view the case from the other’s perspective and offers an evaluation as to how the matter may be decided in court.
Limited Purpose Receiverships
The court has the discretion to appoint a receiver where necessary to accomplish a judicial objective, such as maintaining the assets of a dissolving business. A “Limited Purpose Receiver” takes charge of a defined aspect of the business such as holding assets, collecting accounts and taking charge of the accounting functions of the business, leaving the parties to run the rest of the business. The receivership continues until the winding up process is complete or the parties’ dispute is resolved.
Where resolution of a dispute requires partition of real property, partition can be accomplished by “physical division,” sale or a combination of both, whichever the court determines to be “more equitable.” (CCP §§872.810, 872.820, 872.830.) The court may appoint a referee to assist its determination whether to order a physical division or a sale. (CCP §872.820(b).)