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Litigation & Arbitration

Nov. 8, 2017

Eleanor Barr, Esq.

Barr Mediation LLC

Los Angeles, Encino, Irvine, San Diego, San Francisco

Employment, Environmental, Business, Real Estate, Personal Injury, Insurance Coverage

Nearly twenty years ago, Ms. Barr left her decade-long litigation practice to focus on her passion for mediation and has been mediating exclusively ever since. During these last two decades, Ms. Barr has successfully mediated over 1400 disputes involving complex factual and legal issues, myriad parties, and high emotions. She has been recognized as one of California's premier mediators.

Ms. Barr has been selected as a Top 50 Neutral in California by the Daily Journal. She has also been nominated a Southern California Super Lawyer for 8 years, and has been a Distinguished Fellow of the International Academy of Mediators for the past 15 years. Ms. Barr has served as an Adjunct Professor for the Straus Institute of Dispute Resolution at Pepperdine University's School of Law. She graduated from Indiana University (Phi Beta Kappa) and Indiana University School of Law.

Ms. Barr is known for bringing exceptional people skills to even the most bitterly-contested disputes, for her sense of fairness, and for her tenacious commitment to reaching settlement.

"She's who you want for almost any case. And, if you have a complicated or difficult matter - especially if it's one that you believe can't be settled - she's who you need."

"When there is a significant emotional component involved in the underlying dispute, Ms. Barr is the most effective mediator that I have ever encountered."

Q&A with Eleanor Barr, Esq.

Q: Do they recommend exchanging briefs with opposing counsel? Why?
-- Brian Kabatek, Kabateck Brown Kellner LLP

A: Yes, I usually recommend exchanging briefs. The goal of mediation is for both sides to reach agreement on case value, and exchanging briefs that contain meaningful information is an important step to accomplish this goal. It's especially important to exchange briefs when the case is pre-litigation or newly-filed and there has been little discovery. Similarly, exchanging briefs is very useful if the case involves a novel legal issue, complex facts or a complex damage analysis. Here's a good litmus test to determine whether you should share a brief: Ask yourself whether the opposing party is missing information about the case that will help them understand your perspective of case value. If so, then I would strongly recommend that you provide this information before 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

A: I'm a big fan of getting as much information as possible in advance of the mediation, and this means not only briefs but also supporting evidence. Since most mediations are accomplished through private sessions, I see the mediator's function as understanding and articulating each side's case in the other room. Therefore, I need to know the case as well - or better - than the participants. Once I've read both briefs, I think about what each side might be missing in their understanding of the other side's position. I often make separate pre-mediation calls with each counsel to find out whether there are any unique issues or personalities that I need to understand in advance. Additionally, based upon what I've learned in the briefs, I will inform counsel to be prepared to discuss in greater detail specific issues or evidence during the mediation. In my practice, I ask for briefs seven days in advance, and I strongly urge lawyers to adhere to the due date. Timely briefs will ensure that the mediator is prepared to manage an effective mediation process and outcome.

Q: Will you (the proposed mediator) handle what some of us refer to as "evaluative mediations" instead of just knocking heads?
-- Patricia Glaser, Glaser Weil Fink Howard Avchen & Shapiro LLP

A: Yes, I often make evaluations, because I believe the mediator's job is to be sure that the parties understand potential trial outcomes if the case doesn't settle. When it comes to evaluations, however, timing is everything. A mediator needs to be mindful of when and how to evaluate during the mediation. If the case doesn't settle on the day of the mediation, and a party seeks additional evaluation, I will often prepare a confidential, separate written analysis for that party after the mediation. Generally, I will provide a post-mediation evaluation when the case involves complex factual or legal issues or when settlement decisions are made by absent decision-makers. Additionally, if the parties seek a mediator's proposal, I will use my confidential analysis as the basis for my mediator's proposal.

Q: It appears that most ADR professionals prefer (some insist) that the parties not meet in a joint session. I have found that at least one session where the decision makers can meet face-to-face and articulate their positions with "eye" contact is both effective and helpful. Please comment.
-- Wylie Aitken, Aitken Aitken Cohn

A: I've seen stunning results come from joint sessions where each side takes the time to truly listen to each other. However, people often reject the joint session because they fear that each side will offend the other and this will lead to a failed negotiation. Indeed, if you (or your mediator) view the joint session as an opportunity for the parties to beat each other up, then joint sessions are not simply a waste of time - they are positively detrimental. However, with strategic planning - and a receptive state of mind - I've seen progress occur much more quickly in a joint session than in private sessions, particularly in cases involving strong emotions, complex facts, a continuing relationship, and especially when there is an impasse. A joint session that is managed by a skilled mediator will provide an opportunity for the parties to make connections that can pay off later in the day. When the parties establish rapport in a productive joint session, they are more apt to stay calm and thoughtful even during a competitive negotiation.

Q: How do you reset expectations when parties have unsuccessfully tried to settle a case on their own at an earlier stage in the litigation but the plaintiff now wants to demand an amount higher than it had at an earlier stage? Is the "genie out of the bottle" once the plaintiff utters a demand does that set a more or less permanent ceiling?
-- Joe Tabacco at Berman Tabacco

A: My advice can be summed up in two words: manage expectations. If you have made a pre-mediation demand or offer and are considering opening at a different number at the mediation, then it's important to let the other side know before the mediation. Moreover, it is beneficial to have a logical explanation for the new demand or offer. For example, you may believe your case has gotten better since your last offer or demand, because of new information you've learned in discovery or because you have won or lost a summary judgment motion. In short, a change in your bargaining position should be based on changed circumstances in the litigation.

Q: Do you find scheduling multi-day mediations in complex cases to be more helpful than the pressure created by a one-day session or not and if so why?
-- Joe Tabacco at Berman Tabacco

A: A single day mediation is often not the right format for complicated cases. Before determining how to structure a complex case, I make pre-mediation calls with each party to understand the range of issues, and I will design the mediation process to address these issues. For example, if there are complex coverage disputes among multiple insurance carriers, I will hold a separate mediation session focusing on the insurance disputes before settling the liability case. Additionally, if there are multiple defendants who are fighting over allocation issues, I may take a half-day to explore a global settlement through confidential allocation exercises with defense counsel.
It's important that complex cases are structured properly so the parties are not wasting time. In a multi-defendant matter where the plaintiff is negotiating separately with each defendant, I've found it very helpful to create distinct groups of similarly-situated defendants and stagger their arrival times. This way, the defendants are not waiting needlessly to conduct their negotiation with the plaintiff.

Q: Do you ever ask to meet only with the principals (without their lawyers) during mediations? If so, under what circumstances do you want to proceed this way? Are principals-only meetings helpful?
-- Brad Brian, Munger, Tolles & Olson

A: Principals-only meetings can be extremely effective, with the following caveat: Counsel for each side needs to understand what the principal intends to accomplish in the meeting. For example, the principals may seek to establish rapport and credibility for the ensuing negotiation or for a continuing relationship beyond the lawsuit. These goals will likely encourage productive negotiations later in the day. If, however, the principals seek to negotiate a final settlement number in the meeting, the principal and his or her counsel need to strategize before the meeting as to an appropriate bottom-line that includes litigation risk and litigation costs that have accrued up to the date of the mediation. I've seen principals make deals with each other without having a complete picture of the litigation costs and attorneys' fees, because they failed to get this information from their counsel in advance.


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