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Litigation & Arbitration

Nov. 8, 2017

Hon. Robert B. Freedman (Ret.)


Bay Area

Business/Commercial; Class Action/Mass Tort; Employment; Governmental/Public Agency; Insurance; Personal Injury

Hon. Robert B. Freedman (Ret.) brings to JAMS 21 years of experience on trial courts in Alameda County and 27 years of civil litigation experience as an attorney prior to joining the bench. He presided over cases in the Complex Litigation Department and served as Asbestos Case Management Judge. In addition he served as Supervising Judge/Civil Direct Calendaring as well as the Assistant Presiding Judge.

While on the bench, Judge Freedman presided over and settled countless matters in all areas of civil litigation including asbestos, employment, construction defect, insurance, personal injury, medical and professional malpractice business/ commercial matters, real property and governmental agency disputes. Judge Freedman has substantial experience with a wide range of class actions and high-profile cases and has lectured and instructed on these topics throughout California and nationally. Judge Freedman has experience and a particular interest in technology and the application of technology to the law and served as a longtime member of the Information Technology Advisory Committee to the California Judicial Council.

Often recognized for his fairness and dedication to justice, he received the Distinguished Judicial Service Award from the San Francisco Trial Lawyers Association in 2012. In 2008, he was honored as the Alameda County Trial Judge of the Year by the Alameda-Contra Costa Trial Lawyers Association. Since 2007 he has served as a Judicial Member of the Board of Governors of the Association of Business Trial Lawyers, Northern California Chapter. He served as President of the Alameda County Bar Association in 1988.

Respected by lawyers on both sides of the aisle, Judge Freedman places a high premium on civility and is lauded for his even-handed demeanor. Described by those who have appeared before him as exceptionally bright, he is able to quickly grasp complex issues.

Q&A with Hon. Robert Freedman (Ret.)

Q: When do you begin the process of a successful mediation in a complex matter? Do you contact the parties in advance after receipt of the mediation briefs to gather intelligence, collect thoughts, answer questions, etc.?
-- David Willingham, Boies Schiller Flexner LLP

A: The process best begins when the mediation has been scheduled and, sometimes before an initial mediation date is set, when timing or "ripeness" for resolution is significant. An initial joint conference call before briefing is preferable and may help focus the briefing. Counsel may need to include subject matter in a mediation brief to assure a client that their interests are being articulated even on topics that are not in dispute or critical to the outcome. This should be seen as potentially fostering resolution and accommodated unless clearly counterproductive. The issue of mediation briefs being submitted confidentially, only to the mediator, and not served on other parties, or exchanging briefs should be addressed. While mediation confidentiality must embrace briefing, very often exchanged briefs, with a separate addendum for the mediator only, will expedite preparation and help the parties and the mediator effectively and economically prepare for the mediation.

Q: When a mediator comes to a session only mildly prepared, it does not feel like the parties get their money's worth for the day. What do you do to prepare for a mediation to ensure it is effective, and what do you ask of both sides to help prepare?
-- Rick Richmond, Jenner & Block LLP

A: No one wants to (or should) hear the mediator begin the session by asking, "What is this case about?" Pre-mediation session conferences calls (jointly and separately) and focused briefing are critical. Although the mediator is not the decision maker, the line between the "facilitative" and "evaluative" roles is often elusive. Thus, some legal or other research may be useful to enhance the prospects for resolution. Assuring that decision makers are present, or at least accessible, when personal presence is not feasible or necessary is significant. However, there are cases in which having all decision makers present can be counter-productive. A corporate or public entity party may need a board vote to confirm a settlement, but counsel may properly conclude that some time or "space" is conducive to obtaining formal approval of a conditional settlement reached at mediation. Counsel for the parties are in the best position to inform the mediator when absence is more useful than an incendiary presence.

Q: Do they ever use a joint session? Ten to fifteen years ago we did those with regularity. If not, why not?
-- Brian Kabateck, Kabateck Brown Kellner LLP

A: Ever? - Short answer - yes! Longer answer: No mediation related subject could be more case specific or less scientific than the issue of the utility of the joint session. This also invokes the issues of: (1) who (counsel only, counsel and all or some parties, claims representatives, experts, "support" persons) should participate; (2) the format of the joint session, e.g. the equivalent of an opening statement at trial or a focused dialog on one of more specific issues; (3) timing of the joint session(s): (a) early as an "ice breaker"; (b) at any time to clarify a specific issue; (c) or only when all hope appears lost. Insight from counsel as to the sophistication, self-control or volatility of potential participants should be respected. The experiences of counsel with each other in other cases may be influential ("....I already know what he/she is going to say..."), but also mistaken. An opportunity lost - or disaster averted? Mediation is a voluntary process including the willingness to participate in a joint session, but the joint session can be, sometimes surprisingly, a road to resolution.


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