Last week the National Football League owners and the recently-decertified NFLPA were ordered to mediation, and today U.S. District Judge Susan Richard Nelson informed the parties that mediation will re-commence on Thursday, April 14, in front of Chief Magistrate Judge Arthur Boylan.
This is viewed as a victory for the NFLPA, who wanted Judge Nelson to oversee the mediation process. The NFL sought to return to Washington, D.C., and mediator George Cohen at the Federal Mediation and Conciliation Service.
By all accounts, Mr. Cohen was able to bridge many gaps and overcome many hurdles—minor and major, real and perceived—between the owners and the NFLPA. I have yet to read a negative account of the mediation sessions; by all accounts, Mr. Cohen did an admirable job.
So why would the NFLPA want a federal judge to oversee mediation from this point forward? Mediation is a process whereby a neutral third party facilitates dialogue between the parties, who must reach agreement voluntarily in order for a settlement to occur. A mediator lacks the ability to force anyone to do anything. The NFLPA has been the beneficiary of 20 years of favorable decisions in U.S. District Court, and apparently the NFLPA is convinced that the magistrate judge assigned to preside over the upcoming mediations will attempt to strong-arm the owners into a favorable deal for the players.
I think the NFLPA is making a big mistake by insisting on leveraging what has been a winning hand in the U.S. District Court. On the one hand, Magistrate Judge Boylan and Judge Nelson could potentially get a firsthand look at the owners’ tactics within the guise of the mediation and form an opinion of the owners’ position that colors future rulings. On the other hand, the players and owners were apparently not too far off when the mediations with Mr. Cohen broke down. These negotiations have been very tense and emotional, and it seems fair to categorize the relationship as fragile. If the players believe that a deal will only get done after receiving favorable rulings in the U.S. District Court, and that it needs to expose the owners to the judges in order to obtain favorable rulings, then the current strategy is a sound one. If the players are optimistic that a deal can be reached voluntarily between the parties with the court only minimally involved, then this strategy runs the risk of blowing up all of the progress achieved with Mr. Cohen.
In the big picture, the most important thing for the two sides is dialogue. This requires building off of previous agreements reached with the assistance of Mr. Cohen. The mediation between the NFL and NFLPA is the ultimate example of many small agreements leading to a larger agreement. In requesting that mediation be held in the federal court before a magistrate judge, the players and their association seem to be intent on “winning” these negotiations. My concern is that the progress made to date could be negated by this move, and the players’ minor victory—mediation in front of a U.S. District Court judge—could ultimately result in a major loss.
One final thought: If the parties are interested in resolving their dispute with the assistance of a mediator, my belief is that the owners should be receptive to mediating in front of Judge Boylan and the players should be receptive to mediating in front of Mr. Cohen. Mediators beat up parties; both Judge Boylan and Mr. Cohen are going to try to make the owners give up a greater percentage of revenue and to provide lifetime health care to the players, and they’re going to try to get the players to reduce the percentage of shared revenue and to implement a rookie salary scale that reduces the amount of guaranteed money players who have never played a snap in the NFL receive. The mediators are going to habitually reinforce the need for labor peace sooner than later for the good of the game, to preserve and protect the golden goose. In other words, the mediator is going to play the same role whether he is in Leucadia, Minnesota, or Washington, D.C. It stands to reason that if the parties can’t agree on the forum for mediation, the chances of resolving an exponentially more complex dispute is pretty low.
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The National Football League and the NFL Players Association agreed yesterday to begin mediating their dispute with respect to the Collective Bargaining Agreement that expires March 4, 2011. Various news organizations have described the process as “voluntary” and “non-binding.” Commentators have questioned the wisdom of the parties operating from separate rooms as opposed to being in the same room. In short, the fundamentals of mediation have become national news, and the lack of quality information is both pervasive and dumbfounding.
First, mediation is by its very nature a voluntary process. In agreeing to mediate, parties to a dispute are acknowledging, implicitly or explicitly, that they are unable to resolve the dispute amongst themselves. Here, the NFL and NFLPA have wisely decided to begin mediating quickly after the breakdown of their informal talks.
Second, mediation is always non-binding. There are ways to convert a mediation to an arbitration (although the courts have frowned on such attempts), and there are ways for the mediator to attempt to break an impasse by way of what is known as a mediator’s proposal, but generally speaking the parties who agree to mediate do so voluntarily and agreement can only be reached with the consent of both parties. The mediator’s job is to facilitate dialogue. The mediator can offer an opinion on a given issue but cannot rule on any issue. With the NFL and NFLPA, meetings were cancelled when the parties determined that they were unable to communicate directly with each other. Attending mediation allows the parties to reopen communication. For those of us hoping to see a full NFL season in 2011, dialogue is paramount.
Third, a mediator must use his or her judgment when deciding whether to put the parties together or separate them into what are known as caucuses. As the NFL and NFLPA saw last week, being in the same room can oftentimes be counterproductive. A look is misinterpreted, the tone turns hostile, a slight is perceived, questioning becomes too aggressive. Negotiations are sensitive and, while these negotiations involve some of the toughest, fastest, and strongest people alive, emotions play a huge role in the negotiation process. Therefore, separating the parties and shuttling communications back and forth is a very effective way to ensure that the other side receives the message — not the emotion.
The NFL and NFLPA have chosen George H. Cohen of the Federal Mediation and Conciliation Service to mediate their dispute. Mr. Cohen was hand-picked for his position by President Obama, so it is not entirely a stretch to say that the fate of our national pastime is in the hands of the highest reaches of government. Nevertheless, the success of FMCS and Mr. Cohen will be determined entirely by the parties’ willingness to productively engage in good-faith negotiations, and their ability to work together to avoid a work stoppage
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Today the California Supreme Court reversed the Court of Appeal in the case of Cassel v. Superior Court, holding that communications between an attorney and client “in the course of a mediation” are confidential and privileged, and thus cannot be used later when a client attempts to sue his lawyer for malpractice.
The California Supreme Court read Evidence Code § 1119 literally. And it read it wrong.
Here are the facts of Cassel, straight from the California Supreme Court’s opinion:
Petitioner Michael Cassel agreed in mediation to the settlement of business litigation to which he was a party. He then sued his attorneys for malpractice, breach of fiduciary duty, fraud, and breach of contract. His complaint alleged that by bad advice, deception, and coercion, the attorneys, who had a conflict of interest, induced him to settle for a lower amount than he had told them he would accept, and for less than the case was worth.
Prior to trial, the defendant attorneys moved, under the statutes governing mediation confidentiality, to exclude all evidence of private attorney-client discussions immediately preceding, and during, the mediation concerning mediation settlement strategies and defendants’ efforts to persuade petitioner to reach a settlement in the mediation.
Evidence Code § 1119 states:
With specified statutory exceptions, neither “evidence of anything said,” nor any “writing,” is discoverable or admissible “in any arbitration, administrative adjudication, civil action, or other noncriminal proceeding in which . . . testimony can be compelled to be given,” if the statement was made, or the writing was prepared, “for the purpose of, in the course of, or pursuant to, a mediation . . . .” (Evid. Code, § 1119, subds. (a), (b).) 1 “All communications, negotiations, or settlement discussions by and between participants in the course of a mediation . . . shall remain confidential.” (Id., subd. (c).)
The purpose of Evidence Code § 1119 is to facilitate dialogue between parties (i.e., “participants”) in a mediation. It is difficult to say how effective mediations would be without this type of confidentiality, but needless to say it would be almost impossible to have any type of productive dialogue or negotiation without this broad confidentiality provision.
Conversely, an attorney always has a fiduciary duty to his client, meaning the attorney’s duty to put the client’s interests ahead of the attorney’s interests is absolute. At the same time, the client has the duty and obligation, whether moral, ethical, or contractual, to be honest and forthright with the attorney. So both the attorney and client have duties and responsibilities to the other, regardless of the context, 100% of the time.
Or, should I say, had.
The Cassel ruling potentially hurts both parties to a dispute and their attorneys. In Cassel, the client, who alleged malpractice as a result of communications made by his lawyer to him in the course of a mediation (defined as prior to, during, or following the mediation itself), is precluded from offering into evidence any verbal communications and/or writings memorializing such advice. Similarly, if the attorney advises the client to accept offer A (or make offer A), and explains the hazards of not accepting offer A, and then memorializes those hazards in a post-mediation communication, the client hypothetically could later testify that he/she was never advised to accept offer A, nor was he/she advised on the hazards of accepting offer A. (While this may sound dubious or unlikely, I have colleagues who were sued (successfully!) under this exact scenario.) Therefore, an attorney can fulfill his/her fiduciary responsibility to the client and can later introduce no evidence in court that he/she competently and conscientiously fulfilled his/her obligations, duties and responsibilities.
Here is the strongest argument the Cassel court can make in support of its ruling:
Moreover, as real parties observe, the Legislature might reasonably believe that protecting attorney-client conversations in this context facilitates the use of mediation as a means of dispute resolution by allowing frank discussions between a mediation disputant and the disputant’s counsel about the strengths and weaknesses of the case, the progress of negotiations, and the terms of a fair settlement, without concern that the things said by either the client or the lawyers will become the subjects of later litigation against either. The Legislature also could rationally decide that it would not be fair to allow a client to support a malpractice claim with excerpts from private discussions with counsel concerning the mediation, while barring the attorneys from placing such discussions in context by citing communications within the mediation proceedings themselves.
This would be a legitimate concern only if the underlying case had failed to resolve at the time the malpractice action was filed (leading to the possibility that attorney-client privileged communications, including the strengths and weaknesses of a case and settlement value, were fair game in open court), or if the matter had resolved subject to a confidentiality clause. In the former case, concerns about privileged communications being prematurely revealed would require a stay of the malpractice action pending the outcome of the underlying action (assuming that a malpractice action would even be ripe before the conclusion of the underlying matter). In the latter situation, confidentiality clauses generally provide for the discovery of the settlement terms in certain circumstances, one of which is if compelled by a court in a subsequent proceeding. Therefore, one party could refuse to reveal documents and/or testimony, citing the confidentiality clause, and the court could then compel that party to provide this extremely relevant and necessary testimony.
As a mediator, I do not see this affecting my practice in any way. Cassel could arguably have required a mediator to testify as what he/she heard in the course of a mediation between an attorney and client, but does not address the issue. And, in fact, Cassel explicitly states, “The only question presented is whether certain attorney-client communications [that occurred outside the presence or hearing of the mediator or any other mediation participant] were “for the purpose of, in the course of, or pursuant to,” that mediation.”
As a litigator, I cannot conduct myself or my practice any differently in spite of Cassel. I have a duty to my client to explain the risks and rewards, the upsides and downsides, of any prospective resolution regardless of the setting or context. It is my practice to memorialize these discussions in writing for two reasons: (1) it oftentimes helps the client to see the pros and cons in writing; and (2) I was taught early in my career that there are certain communications that must be memorialized if for no other reason than to CYA. In the end, Cassel is wrong because at best it excludes the best evidence of attorney-client communications prior, during, and subsequent to mediations that are unquestionably relevant to the issue of attorney malpractice or misconduct (or another such admission of same by the client) and, at worst, encourages dishonesty in a subsequent proceeding.
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When looking for someone to mediate your dispute, whether the matter is in litigation or not, there are several factors that you want to consider:
1. What is the mediator’s background?
Most mediators have undertaken an extensive training course prior to beginning to practice as a mediator. I am on the mediation panel of the San Diego Superior Court, which requires a 32-hour course and at least six mediations of two hours or more prior to joining the panel. I took a 40-hour course through North County Lifeline in Vista, California and then mediated or co-mediated approximately 12 cases prior to joining the San Diego Superior Court panel. Equally as important, I began my career in the law working for the San Diego County District Attorney (“SDCDA”) in the area of child support enforcement; in that capacity, I generally mediated 6-12 child support disputes between custodial parents and non-custodial parents in any given day. Spending 15 or 16 months with SDCDA sharpened my mediation skills dramatically and gave me a great foundation to take into my civil mediation practice.
2. How do I know the mediator will be fair and impartial?
There is no way of ever knowing for sure that a mediator will be fair and impartial. That said, a mediator does not make a decision for you; mediation is a voluntary process and ultimately you choose whether or not to resolve your matter. A mediator’s job is to narrow the issues and to assist the parties in focusing on areas of agreement and disagreement, with the ultimate goal of eliminating the areas of disagreement. I believe my background makes me uniquely qualified to mediate civil litigation disputes. I have worked equally for plaintiffs and defendants in my career; I have prosecuted cases for homeowners and defended cases for homeowner’s associations. I have prosecuted insurance bad faith cases for insureds who have been denied benefits and I have defended bad faith cases on behalf of insurers. I have represented plaintiffs who were wrongfully terminated and/or discriminated against and I have defended employers accused of wrongfully terminating an employee and/or discriminating against an employee. In short, I believe one of my biggest strengths is being able to see both sides of an issue, and my background allows me to assess any given matter from both a plaintiff’s perspective and a defendant’s perspective.
3. How much will a mediator charge? Are there any hidden fees or costs that I should know about?
Mediators charge anywhere from $150/hr. (generally a reduced rate through the San Diego Superior Court mediation program) to $500-600/hr. (for a retired judge). If you use AAA or JAMS, you will also likely pay an administrative fee of $150-175 per party. Some mediators will charge you an additional fee to read your pre-mediation brief.
Whether or not you seek out my mediation services through the San Diego Superior Court, my rates are simple: $150/hr. for the first two hours (with a two-hour minimum) and $250/hr. thereafter. My fees are split evenly among the parties unless the parties agree to a different arrangement. I do not charge any administrative fee, nor do I charge for the time spent reading your mediation brief. I charge for the time we spend mediating your matter. Period.
4. How do I know that the dispute will be fully resolved if we settle at mediation?
Generally speaking, if a dispute is resolved at mediation the parties will enter into an agreement that is binding, admissible, and enforceable. Oftentimes a simple agreement will be entered into at the conclusion of your mediation, and thereafter the parties may enter into a more formal and comprehensive agreement. However, the simple agreement entered into at the conclusion of the mediation generally will stand on its own and will encapsulate the most important terms and conditions of a settlement agreement.
5. What if I do not have a lawyer but still want to mediate a case?
There is nothing to prevent a non-represented party from mediating a dispute with a represented party (or another non-represented party), and in fact if you cannot afford a lawyer or do not want to share a portion of your settlement with a lawyer then you may be wise to try to mediate a dispute prior to engaging the services of a lawyer. The court system is awfully difficult to navigate without a lawyer, and it can be time-consuming and expensive. It is presently $350 to file a civil complaint in San Diego Superior Court; hypothetically, you could spend two hours mediating your dispute for $300; if the case resolves then you’re done, and if not then you file a complaint in court but you have hopefully narrowed the issues and understand better your opponent’s strategy and claims or defenses. Really, it’s a no-lose proposition. If you have any questions about the process, feel free to call and I’d be happy to address those questions with you.
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