An arbitration is an informal hearing. That may be why attorneys believe that they can tell the arbitrator what they think they can prove through an expert at trial. Sometimes they ask the arbitrator to use his/her expertise as a substitute for expert evidence that should have been presented. An arbitration, as informal as if may be, is still a forum for litigating factual disputes. The arbitrator cannot speculate as to the brilliant testimony of an expert nor can s/he substitute his or her judgment on issues requiring expert testimony.
The new statute of limitations on personal injury actions sets a trap for the lax personal injury practitioner in auto injury cases. The statute of limitations on a personal injury action has recently been extended to two years. Up to this recent change, it had been one year for longer than most attorneys can remember. The new Cal. Code of Civil Procedure Section 335.1 states, “Within two years: An action for assault, battery, or injury to, or for the death of, an individual caused by the wrongful act or neglect of another. [EFFECTIVE 1/1/2003. Added September 10, 2002 (SB 688) (Chapter 448).]”
I believe in Mediation for a very basic reason. I have seen the process at work, and it works. Like any other process it works best when you know how and when to use it. Based on my experiences with the process I believe that I can give some advise on both points. Having said that, you may ask what my experience is. The answer is that I have personally experienced mediation from all the positions you can occupy at the mediation table. As a certified mediator I have facilitated mediations. As an attorney, I have represented both plaintiffs and defendants in mediation. I have had problems of my own resolved in mediation. From this experience I have distilled five basic questions to ask to be sure that you get the most out of your next mediation experience.
Before starting an Arbitration Hearing, I have a conference with the attorneys. A principal reasons for that conference is to determine what rules the parties have agreed to follow in this arbitration. When I ask that question, in many cases, the body language of the attorneys indicates that they think I have no idea what I am asking. I go on to explain that there are many sets of rules for arbitration. The parties may, by agreement, adopt any sets of rules. I tell them that if I am going to referee a game, I need to know what game I am refereeing. There are different rules for football depending on whether it is NFL, college, or high school. Why not different rules for different arbitrations?
Musings about mediation were contributed by C. David Serena, who was an attorney in the private practice of law for more than thirty years. He was certified as a mediator through the L.A. County Bar Association’s Dispute Resolution Service, and as a Court Annexed Arbitrator by the Nevada State Bar. He served exclusively as an arbitrator and/or a mediator through Judicate West.