Wednesday, January 31, 2007

Celebrating 1,000 Hits

When I first started this blog in August 2006, I didn't have a way to track the number of "hits" to see if anyone was actually reading my articles. And it was clear that looking at the number of "Profile Views" doesn't quite do the trick since return readers generally have no reason to check out my profile when they're checking back for new articles. But I wanted a way of knowing that the information I was posting was actually reaching people.

So I saw a discreet site meter on someone else's website, followed the link and created my own site meter for this blog. I also ensured that my own visits would be ignored since I view the blog often to make changes or post new articles but certainly don't want those counted. But because the site meter is fairly small and located at the very bottom of my blog, I don't always see it. And that is why I didn't realize I'd passed the 1,000 mark! (1,122 as of this moment). Wow. It's great to know that the information I am providing is reaching people, some of whom call or write, but others don't..... and yet, I still know that you're out there and taking the time to read what I've taken the time to write - for you. Happy 1,000 to!!

Sunday, January 28, 2007

Mediation Required in Real Estate Action for Prevailing Party to Recover Attorney's Fees

In real estate disputes, "Seeking mediation is a condition precedent to the recovery of attorney fees by the party who initiates the action." (Johnson v. Siegel (2000) 84 Cal.App.4th 1087)

In California, litigants are expected to pay for their own attorney's fees unless there is a special law or contract provision stating otherwise. And there are special provisions in most real estate purchase agreements which provide that in the event of a lawsuit between the buyer and seller, the "prevailing party" of the lawsuit is entitled to recover attorney's fees but only if the party who filed the action first attempted to resolve the dispute through mediation. That means the losing party has to pay his own attorney's fees as well as the winning party's fees - but only if mediation was attempted first.

Several days ago, the California appellate court confirmed in its ruling in Van Slyke v. Gibson that it is the party filing the lawsuit who is required to request mediation of the real estate dispute first and not the party who was sued. If mediation is not successful, then a lawsuit or arbitration can be pursued and attorneys' fees will be paid by the losing party to the prevailing party - regardless of whether the prevailing party is the plaintiff or the defendant.

In the Van Slyke case, $94,974 was at stake as the defendant seller prevailed in the lawsuit brought by a prospective buyer and then sought to have that prospective buyer pay almost $100,000 for the attorneys' fees the seller incurred from the litigation. The trial court ordered the prospective buyer to pay that amount to the seller. The award was confirmed on appeal and the appellate court also ordered the prospective buyer to pay the defendant seller's attorneys' fees incurred on appeal.

That's a lot of money. It all could have been avoided had the prospective buyer/plaintiff (Van Slyke) requested or attempted mediation of the dispute in the first place. Not to mention that Van Slyke has to pay his own attorney's fees as well, which could have been greatly minimized through early mediation.

And, did I mention how much wasted time was involved to get a final resolution of the case? The events leading to the lawsuit occured in May 2004 and Van Slyke filed the lawsuit in June 2004. Sometime later came the trial court ruling and finally, on January 18, 2007 - almost three years later - the appellate court ruling. But it's not done yet. The appellate court ordered the case back to the trial court to determine the amount of fees Van Slyke owes the defendant seller for the attorney's fees incurred on appeal. All signs point toward one easy and early decision that should be made in real estate disputes: Mediation!

Sunday, January 21, 2007

Avoiding Employment Litigation with Mediation Before Termination

I was hired to mediate the termination of a long-term employee from his place of employment. The employer had previously been sued by a former employee and wanted to avoid a repeat performance. But the employer was not sure how to work out an agreeable solution that was fair for both sides and accounted for some errors that had been made by both parties.

The employer found my website and discovered that I have represented both employers and employees in litigation and counseling and figured this would help both the employee and employer feel comfortable working with me as a mediator. After speaking with both sides, it was agreed that mediation was a good idea to get creative solutions without breaking the bank on attorneys' fees. My job in mediation was to understand what a "fair" result actually meant to both parties and see what could be done to achieve it.

"Fair" for the employer meant security in knowing it would not face another lawsuit or any other repercussions if this employee was unhappy and spoke negatively about the company. "Fair" also meant not paying out a massive severance pay the employer could not afford. But the employer recognized the great asset the employee had been for many years and wished to find ways to acknowledge that fact which would be meaningful to the employee and still feasible for the employer.

"Fair" for the employee meant not only a reasonable severance pay or other bonus pay, but also not having a record of being "fired" and also having a strong letter of reference from the employer. These last two items were very important to the employee who understood, through mediation, the reasons for the employer's decision and was not bitter at being let go, but wished to do it with dignity.

It turned out that being able to leave his long-term position on good terms with his employer, and being taken out to lunch with the other employees to celebrate his "retirement" from the company (and having his wife invited to lunch too) did more to ease any feelings of resentment he might have had than the employer could have realized.

Through open communication we were able to delve in and discover the real needs and interests of the parties and then work to figure out ways to meet those needs. This was a happy ending for everyone.

Friday, January 12, 2007

Five Things You Don't Know About Me

It looks like I've been "tagged" by fellow mediation blogger Vickie Pynchon to disclose something personal about myself in her "Five Things You Don't Know About Me" blog tag posting.

First, I am the middle child (and only daughter) between two brothers evenly spaced at 3 years younger and 3 years older than I am. There's something about this dynamic about being the middle child and wanting to foster harmonious relations; that may be one explanation for my gravitation toward mediation.

Second, I was the opinion editor of the newspaper produced by the community college I attended (Cypress College) prior to matriculating to UC Irvine. I had a column titled "Paula Logic" which was a forum for me to write about politics, life and whatever else was interesting to me, kind of like this blog!

Third, I was a private investigator for several years before and during law school. The field of law was a creative way for me to combine writing with the work I enjoyed as an investigator. Luckily for me, private investigation work paid better than many of my law school classmates' bartending jobs or free clerking positions.

Fourth, I'm not a workaholic by any means, but if I won the lottery, I would still work because I love what I do. But I would probably only work a couple days a week. Also, I would have to play the lottery for this scenario to work - but I don't.

Fifth, one of the great things about living in a city like San Francisco is that we do not rely on our cars as much as we would if we lived in the suburbs. Although I have a car and love driving, I love the freedom of not being tied to my car. So I walk and take BART, and even MUNI trains on occasion and, yes, I even wear tennis shoes with my suits and break out my high heels once I'm where I need to be.

I will update this posting when I think of some other bloggers to tag now!

"What Types of Disputes Can Be Mediated?"

Answer: Any problem or disagreement you have that involves at least one other person or entity generally can be mediated to find a solution. Even if there is no "legal" remedy, there is often a remedy that can be found through mediation.

All of the following types of issues can - and are - resolved through mediation every day: contract disputes, personal injury or wrongful death claims, landlord/tenant disputes, disputes between neighbors, insurance disputes, medical or legal malpractice issues, real estate disputes, employment or labor disputes, divorce issues (financial aspects and custody/visitation issues), and probate disputes.

Mediation is also useful in matters that would not be litigated, but could benefit from the assistance of a neutral mediator. In these situations, the mediator can facilitate difficult discussions that are often necessary in the preparation of estate plans and prenuptial agreements whether because of the significant size of the assets involved or because of contentious relationships surrounding these agreements.

Such facilitative mediations help reduce conflict and tensions, keep the discussions focused on key issues and help everyone involved understand what needs to happen and why. When important discussions such as these are conducted in a meaningful and productive way, more creativity and thought is put into the final product or agreement, which leads to fewer disputes later on when it comes time to interpret and carry out the terms of the estate plan or agreement, if needed.

Mediation of a Construction Contract Dispute

In a construction contract dispute, the homeowner and the contractor who was hired to update the kitchen end up having a disagreement over the terms of the contract when the bill comes in $50,000 over what was promised and the work fell far short of the homeowner's satisfaction.

What were the homeowner's options when a solution could not be reached through direct discussions and tempers were starting to escalate the dispute even more?
The homeowner did not want to hire a lawyer and deal with a breach of contract lawsuit he would have to commit more time and money to, since he was short on both. And $50,000 was too much money for a small claims case. (Filing a small claims case is often a good "quick and dirty" solution when the amount in dispute is under $7,500 because resolution is just 30 days away).

So what did the homeowner do?

The homeowner contacted the Bar Association's Mediation program, got the contractor to agree to the plan since it was in his best interest to have this resolved too. Both paid small administrative fees to be assigned an experienced and qualified mediator whose hourly rates they could afford; A four hour mediation meant each would only pay for two hours of the mediator's time (although Bar Associations often provide the initial one or two hour of mediator time free).

Mediation was scheduled within two weeks, the mediation took half of one day and both parties were able to express their frustrations and consider a notepad full of solutions. As is often the case, the solutions to this dispute were found in the expressions of frustration from both parties.

The contractor agreed to re-do certain specific items (the ones that caused the homeowner the most frustration) at no additional charge. The homeowner agreed to pay almost the full amount of the contractor's bill.

Will the homeowner hire this contractor again? Probably not. Is the contractor upset at losing this homeowner as a repeat customer? Again, probably not, although the contractor may be more upset at losing a potential source of referrals, which is likely part of the reason for the free repair work.

Both parties were able to walk away with their pride intact, their interests satisfied with the solutions in hand and the relief of having put one big problem to rest without a lawsuit.

[Image from:]

Friday, January 05, 2007

New Year - New Problems to Solve

I have spoken with several individuals in the new year who are uncertain whether to jump right into mediation of their disputes or whether to hire an attorney, start the legal process and then get into mediation. There are other variations of this dilemma as well, including whether to hire attorneys to provide counsel during pre-litigation mediation or not.

Just as in mediation, these decisions are not mine. I can help these individuals to make their decisions but I cannot make recommendations or decisions for them.

I believe the more informed a person is before making any decision, the better the decision will be and the better the person will feel after making that decision.

What I can do is provide these undecided individuals with information regarding the legal processes and the mediation process and other options and also provide them with online resources to consult. The information provided varies depending on the specific nature of the dispute, but I am always happy to do it.

This is one way in which I work to empower individuals to make the very best decisions for themselves even at this early stage, and at every subsequent stage during the mediation process.