In this protracted and nasty litigation that ended up in mediation, I represented the head of construction of a major builder. It was a privately held company at which my client had worked for thirty years. He and the owner of the company had become friends and had even built their houses on adjoining lots in Newport Beach. My client had a written employment contract with the company that allowed him to work on his own projects even if the projects competed with the company. The contract specified that he did not have to offer his private projects to the company or even inform the company about them.
OCBA member Michael Balmages received the first “Lifetime Achievement Award” from the Orange County Superior Court Temporary Judge Program in recognition of his 35 years of service to the court as a volunteer, temporary judge, trainer, and mentor. The award was presented to Balmages at the Temporary Judge Appreciation Event on Jan. 9, 2020 at the Central Justice Center.
Balmages practiced business litigation in Orange County for 46 years. He is currently a full-time neutral with ADR Services, Inc.
Court rules differ, judges differ, court clerks differ, and lawyers differ, but there is one constant throughout California courts: most civil cases settle. I have heard estimates from various court officials putting the settlement range at 95% to 99.5%. In some types of cases, e.g. ADA cases, rear-enders, wage and hour, lemon law, and more, it seems like 100% of the cases settle. Many settlements are reached at or following mediation or mandatory settlement conferences. While these procedures seem the same, there are notable differences.
Mediators are often described as “facilitative” or “evaluative.” Facilitative mediators bring the parties together, provide a safe space for them, serve them chocolate chip cookies in the afternoon, and try to help the parties reach a mutually satisfactory resolution of their dispute. Kumbaya. Evaluative mediators tell you their opinions on probable outcomes and the costs and hardships of getting to those outcomes. Telling it like it is, they often recommend settlement terms.
Most mediators are some of both. they provide the cookies and their opinions. In my experience, although they greatly value the cookies, most lawyers prefer the mediator’s opinions. And they want them unequivocal and in favor of their client. Selecting a mediator is like picking a jury. Everybody says that they want a “neutral” neutral, just like everyone says that they want a fair and impartial jury. the truth is that, just like with a jury, many, if not most, lawyers want a mediator who is unequivocally on their side.
There are many reasons not to settle your case now. From the defendant or defense counsel’s perspective, numerous reasons to press on include: The time value of money. The plaintiff does not have the staying power. We can defend this. We should set an example. I’d rather pay my lawyer than pay that jerk anything. It’s a matter of principle! These are all good reasons.
This is a tale of two Bobs and the settlement lesson I learned dealing with them. The first was Bob the accountant, whose funeral I attended last week, and the second was Bob the now retired lawyer, who was perhaps the wisest lawyer I ever worked with. Skipping ahead, the lesson is that you are never going to convince the other guy that he is a bad guy.
Mike Balmages has been a Volunteer Astronomer for The Reserve at Rancho Mission Viejo for nearly 20 years. Each month, Mike volunteers during The Reserve’s Astronomy Night. He has extensive astronomy knowledge which he shares with our guests on a monthly basis. He is extremely knowledgeable, educational and entertaining, and we are complimented every month by our patrons on how he helped them to understand and appreciate the variety of objects they are viewing in our night skies. They also comment on how entertained they are by his funny astronomy jokes. He takes time before Astronomy Night, to prepare for what we may be able to see during the evening. He tells us about naturally occurring objects like planets, stars and constellations. He also includes man-made objects such as the International Space Station, Iridium flares and other satellites.
Michael tells the story of a litigated matter, its effect on the parties’ long-term relationship, the price paid in both monetary and non-monetary respects, and why two mediations failed to result in settlement. The lessons to be learned are valuable to counsel, litigants, and mediators.
Episode 6 of Season 2 features Michael Balmages, an accomplished mediator and discovery referee with extensive experience as a trial lawyer, general counsel, and transactional lawyer. As a mediator and neutral, he has had great success in helping litigants resolve their disputes in more than 1,000 cases. In this conversation with Michael, an avid astronomer, we discuss the importance of process to the understanding of how to resolve disputes and whether there is anything in common between law and astronomy
How does the Code of Ethics apply to mediation? Join three top mediators as they discuss ethical issues that arise throughout the mediation process. This discussion will cover confidentiality and mediation privilege, neutrality, lying in mediation, extortion, fairness, and civility. Drawing on thousands of cases successfully resolved, the speakers will provide knowledgeable insight into these problems regularly faced during mediation.
Presented by Michael Balmages, Esq. of ADR Services, Inc.
This presentation will explore some of the more common legal and practical issues that get in the way of settlement or, at the least, make it more difficult to achieve. We will discuss reasons why plaintiffs and/or their counsel do not want to settle; reasons why defendants and/or their counsel do not want to settle; who needs to be present; over-thinking mediation strategy; Mediator’s proposals; stipulated judgments; and related issues.