A Publication of the Los Angeles County Bar Association
This Month's Topic: Preparing Your Client Before the Mediation
New! Contributions From Our Readers
Preparing Your Client Before the Mediation
Prior to coming to mediation it is important for the attorney to help the client identify with greater clarity and specificity how everyone can best design a solution to the dispute. It is not only essential for the client to know what they want but also to look at the other party’s point of view and how the other party will respond to their desired outcome/resolution. Remember, whenever a person is negotiating, they are always considering their WIIFM – What’s In It For Me!
The following questions will help your client get in touch with what he/she really wants and are willing to live with:
1. What is it about resolving this dispute that is important to you?
2. What do you think is important to the other side about resolving/not resolving this dispute?
3. What needs to be taken into consideration for you to resolve this dispute and why?
4. What do you think the other side is taking into consideration for them to resolve this dispute and why?
5. In the best of all worlds, what does your favored solution look like to you/make you feel?
6. Is this a realistic expectation in light of the way the other side feels?
7. What possible reasons would the other side have for agreeing/not agreeing with your solution?
8. What possible solutions do you think the other side will present?
9. What criteria will you use to evaluate the various options that may be on the table to make sure these meet your needs or interests?
10. How can you structure the resolution in a way that satisfies your needs and meets enough of the other side’s needs so that they will agree?
When engaging in any mediation or settlement process, put these negotiating skills to use to help you achieve the optimal outcome. This free monthly “One Minute Negotiating Tip” is based on Linda Bulmash's highly acclaimed column, "Negotiate Like The Winners".
Contributions From Our Readers
Last month's topic, "Make Sure Your Settlement Agreement Complies with Evidence Code Section 1123 (b), generated some responses from our readers. This month, we publish two additional settlement agreement tips.
Tips for Enforcing Settlement Agreements
Code of Civil Procedure, section 664.6 is a valuable tool for the enforcement of settlements. However, in order to take advantage of this expedited procedure, the court must retain jurisdiction. A common practice is to simply insert language in a settlement agreement to the effect that the court will retain jurisdiction to enforce the settlement and then dismiss the case. But this method will not succeed in conferring jurisdiction on the court. Once the case is dismissed, the court will lose jurisdiction and the only remedy for a breach of the settlement will be to file a new lawsuit for breach of contract. Hagan Engineering, Inc. v. Mills (2003) 115 Cal. App. 4th 1004.
On the other hand, the court may retain jurisdiction provided that: (1) before the case is dismissed—i.e., while the case is still pending; (2) the parties themselves stipulate to the court retaining jurisdiction; and (3) the court enters judgment pursuant to the terms of the stipulation. The parties may make the stipulation orally before the court as part of a court settlement, or in writing signed by every party. Critically, the stipulation must be made by the parties themselves and not by their lawyers. Wackeen v. Malis (2002) 97 Cal.App.4th 429, 440. Once the court enters judgment on the stipulation, the case may be dismissed but the court will retain jurisdiction to enforce the settlement.
Remember to Consult with Insurance Coverage Counsel
In many insurance coverage disputes, litigation counsel in the underlying action fail to coordinate the terms of a settlement with insurance coverage counsel to verify that any indemnity rights are not waived. A recent example of such a case is Aerojet General Corp. v. Commercial Union Insurance Co., C.A. 3rd No. C051124, Sept.13, 2007, DJDAR 14325.
Aeroject was sued for CERCLA response costs by several water districts. Aerojet tendered the cases to its general liability and excess carriers for defense. The excess carriers rejected the tender. Thereafter, Aerojet resolved the claims be agreeing to a settlement in the sum of $175 million. The underlying cases were dismissed without prejudice and no judgment was entered embodying the settlement or the payment of "damages." In a suit against the excess carriers, Aerojet sued to recover the money it agreed to pay to settle the underlying actions.
Held: Because the excess policies were only triggered by a judgment for money damages, and no judgment was entered as part of the dismissal without prejudice, the absence of a judgment for money damages, resulted in a failure of conditions precedent and the excess carriers did not have a duty to indemnify Aeroject. Judgment for excess carriers affirmed.
Lesson and Rule: Before counsel in the underlying action resolves any dispute regarding a tendered claim he or she must consult with insurance coverage counsel, review all potentially applicable insurance policies again (primary and excess) and verify with each insurance carrier that all conditions precedent to indemnity have been met. Also, when consent to settlement must be obtained from the insurance company, counsel must make sure that all applicable information is transmitted to carrier in a timely manner with a formal request to consent to a settlement.
This tip was provided by David Laufer, of
Dreier, Stein & Kahan LLP, Santa Monica.
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