Retired justice Thomas Goethals finds new role resolving disputes

Thomas M. Goethals has spent nearly 50 years making tough calls in California courtrooms. Now, the former appellate justice is still doing just that -- only from a different seat -- as he works to guide deeply entrenched litigants toward resolution as a private neutral.

"I'm 73 years old, but I still have plenty of gas in the tank," Goethals said in an interview.

Goethals retired from the 4th District Court of Appeal last spring, and he's been working since then as a mediator, arbitrator and special master with ADR Services Inc., often tackling business, probate, and personal injury disputes.

"I seem to get, for whatever reason, many cases where there is, frankly, a lot of animosity between the parties or the lawyers," Goethals said. "And I am called on to very carefully and sensitively try to bring these parties that have been at war for a long time together - at least to such a degree that they are willing to talk about settling a case that probably ought to be settled."

Goethals presided over 300 jury trials during his 15 years as an Orange County Superior Court judge and wrote more than 500 opinions over his eight years as an appellate justice. He said he leans heavily on that experience early in his mediations.

"I call both counsel after reading the briefs, and ... I tell them, 'I'm going to ask you to walk me through the case tomorrow in front of your client,'" Goethals explained about his pre-mediation preparation.

"I'm going to tell you where I think your strengths are," Goethals continued. "I'm going to tell you what I think your weaknesses are. I'm going to talk to you about what I see as evidentiary issues. I'm going to talk to you about what I have experienced in the courtroom with jurors on cases like this, so you and your clients know where you stand and what I think your likelihood of success on this issue is versus that issue.'"

San Francisco defense attorney Nicholas C. Larson used Goethals recently to mediate a complex business dispute, which required a couple of sessions and a great deal of follow-up to resolve.

"He definitely knows the law. ... That's expected and, frankly, required," Larson said. "But he also has a good understanding of parties and their interests and a good demeanor that he uses with attorneys and the parties to try to effectuate the mediation process and the need for compromise to get to a resolution. He's definitely got the right personality and tact for that."

As an arbitrator, meanwhile, Goethals said he tries to apply a "user-friendly" approach.

"I tell the lawyers at the first arbitration management conference, ... 'If you can agree on how you want this to go, I'm going to do it - unless there's some really extraordinary reason why I can't do it that way,'" he explained. "So, I try to let them decide most of the rules and when we're going to do it and how we're going to do it."

Goethals added that if there are credibility issues with witnesses, he'd prefer to see them testify firsthand.

"If I can see them and hear them in person, that really does assist me in evaluating their credibility," Goethals said, adding that he's not afraid to make difficult decisions as an arbitrator. "I am ready, willing and able to make a tough call if I have to. ... That's what the arbitrator is supposed to do."

Newport Beach litigator Holly A. Gilani used Goethals recently to resolve a complex trust case involving 12 beneficiaries, and she described the mediator as "a very emotionally intelligent person."

"He's my go-to guy for very contentious matters," Gilani said. "He's very calm and very down to earth. ... People relate to him, and he manages to develop a relationship with them, which is what's needed."

When Goethals encounters parties who are especially entrenched in their positions during a mediation, the neutral said listening carefully and hearing the litigants becomes even more important.

"You've got to give them an opportunity to express their thoughts, their views, their feelings about the case," Goethals explained. "You have to give them a platform to make sure they can say everything they want. ... That's the No. 1 thing: listen to what it is that has caused the parties on both sides to become so entrenched and to have such strong feelings about their positions."

San Juan Capistrano plaintiffs' attorney Michael J. Cefali used Goethals recently to resolve a premises liability dispute and said he did a terrific job of "making my client feel heard."

"That is such an important part of mediation," Cefali said. "It's cathartic to just tell somebody else your story - somebody besides your lawyer but someone who's still involved in the legal process. ... And I was really impressed with his ability to speak with my client and establish rapport with my client, which is so important when you're talking about the value of their injuries."

Goethals noted that throughout the mediation process, he tries to remind the parties about just how harmful litigation can be.

"I tell them, 'This litigation is really corrosive, and it's really affecting the quality of your life,'" he explained. "'And now that I'm saying it, you know that's true. So, if you can just let go and find some way to find some compromise, six months or a year from now, you're going to write me a letter and thank me for the fact that we found a way to settle it.'"

Like Larson and Gilani, Cefali mentioned the exceptional nature of Goethals' nearly 50-year legal career and the especially helpful role that played in resolving his premises liability case.

"Obviously, he's a really impressive person - justice and superior court judge, all that," Cefali said. "But he's also like a real dude, too, you know? He's just a nice guy. He really is. And when you pair that impressiveness with the approachability, it translates into a very effective person to be talking to my client."

Here are some attorneys who have used Goethals' services: Holly A. Gilani, FBT Gibbons LLP; Michael J. Cefali, Cefali & Cefali; Nicholas C. Larson, Murphy, Pearson Bradley & Feeney, PC; Andrew J. Mallon, Wood, Smith, Henning & Berman LLP; Evan Pitchford, Thompson Hine LLP.