Publications

PATRICIA TWEEDY FEATURED IN THE DAILY JOURNAL
Patricia Tweedy was featured in the Daily Journal on Friday, January 18, 2013. Click here to read entire article


NEW SUPREME COURT CASE ON ADMISSIBILITY
A very important decision has just come down from the California Supreme Court on the issue of whether an attorney’s statements to his client are admissible in evidence in a subsequent malpractice case by the client against the attorney for negligent advice rendered just before and during the mediation. The case is Cassel v Superior Court filed January 13, 2011.
The Supreme Court held that the private discussions between the mediating client and the attorneys who represent him in the mediation are confidential by the plain meaning of the mediation statutes.
Petitioner Cassel settled his case at mediation then sued his attorneys for malpractice, breach of fiduciary duty, fraud, and breach of contract. His complaint alleged that by bad advice, deception and coercion his attorneys induced him to settle for an amount lower than he wanted to accept and for less than the case was worth. The trial court, in limine, excluded all evidence of private attorney-client discussions immediately preceding and during the mediation but the Court of Appeal vacated the trial court’s order reasoning that the mediation confidentiality statutes are not intended to protect attorneys from the malpractice claims of their own clients. The Supreme Court reversed, confirming in a detailed opinion, that the mediation statutes(Evidence Code Sections 1119 et. seq.)require strict confidentiality of statements made by all mediation participants unless a communication is expressly waived under statutory procedure.
The decision summarizes several prior Supreme Court decisions and reiterates the Legislature’s intent that the confidentially statutes be applied broadly and that exceptions are limited to narrowly proscribed statutory exemptions. All persons who participate in mediations would be well-served to read the opinion in its entirety. Click here to read full text of the opinion


CONFIDENTIALITY AGREEMENT
Newcomers to the mediation process often wonder why they must sign a confidentiality agreement. In order to answer the question, I thought it would be helpful to place a sample agreement itself on the website for review by potential participants. The agreement tends to answer the question. If the reader still has questions, my advice is to call your attorney for an explanation. Your attorney is your advocate and a person you trust and this is a question she can easily answer. The mediator too, when you arrive, will have a fuller explanation for you. Click here to read entire article


NEW SUPERIOR COURT MEDIATION PROGRAM FOR INDIGENTS IN LANDLORD TENANT DISPUTES
Opportunities exist for lawyers who would like to volunteer short periods of time to an exciting new mediation program involving landlord tenant disputes in Sacramento County. Click here to read entire article


MANDATORY REPORTING OF SETTLEMENTS – NEW MEDICARE RULES
On October 1, 2010, liability insurance carriers will begin mandatory reporting settlements, judgments and awards of Medicare beneficiaries to the Coordination of Benefits Contractor regardless of whether or not there is a determination or admission of liability. Click here to read entire article


MEDICARE & MEDICAID STATE CHILDREN'S HEALTH INSURANCE
Consultant to carriers, third party administrators and self-insured employers provides overview of new Medicare reporting and recovery law. Click here to read entire article


MODEL STANDARDS OF CONDUCT FOR MEDIATORS
The Model Standards of Conduct for Mediators was prepared in 1994 by the American Arbitration Association, the American Bar Association’s Section of Dispute Resolution, and the Association for Conflict Resolution. A joint committee consisting of representatives from the same successor organizations revised the Model Standards in 2005. Both the original 1994 version and the 2005 revision have been approved by each participating organization.Click here to read entire article


GETTING A SUCCESSFUL RESULT AT MEDIATION
Parties have found that compromise of a dispute avoids the risk and cost of litigation. We have come to learn that it is easier to work out a compromise with the assistance of a qualified neutral. There are ways to increase the probability of success at mediation. Click here to read entire article


GETTING YOUR OPPONENT TO MEDIATION
Parties and their attorneys often ponder the question of how to get their opponent(s) committed to the mediation process. One way that involves no loss of face is for one party to contact the mediator. The mediator then contacts the opposing side. Through questioning of and discussions with opposing sides, the mediator may discover specific conditions under which the parties will be willing to negotiate with one another. These conditions might include issues regarding the timing or location of the mediation sessions or may include specific discovery issues that one side needs to resolve prior to coming to the bargaining table. Click here to read entire article


MEDIATING EMPLOYMENT CASES
How can parties in employment cases improve their success at mediation? Statistics have shown that only about 50% of employment cases settle at the first mediation session. This number is not representative of settlements at mediation in general. Other types of lawsuits, including personal injury cases and commercial disputes, have much higher resolution rates at the first mediation session. Click here to read entire article


THE VALUE OF MEDIATION IN GUARDIANSHIP AND ELDER CARE DECISIONS
There isn't a person who has not personally experienced (or heard of) battles among siblings over the care of their parents. The stories are heartbreaking because they so frequently shatter the family relationship. In the middle of it all, the parent everyone is trying to protect is terribly damaged. Click here to read entire article


APOLOGIES & LUNCH
by Sidney K. Kanazawa
Apologies and lunch—two of the most effective tools in dispute resolution—are normally not even on the list of possible litigation tactics. Lawyers and clients alike expect their litigators to be “tough,” “demanding,” and “aggressive.” They don’t expect their advocates to say “sorry” or “do lunch.” In the beginning, I too believed the myth of “lawyer warrior. Click here to read entire article


MEDICAL MALPRACTICE: MEDIATION & ARBITRATION
Medical providers, insurance companies and litigants are finding that mediation can be a better solution to their disputes than litigation. Click here to read entire article


ASSESSING THE RISK OF DEFENDING CLAIMS INVOLVING PATIENT FALLS
In 2005, the Joint Commission of Accreditation of Hospitals developed several national patient safety goals in order for accredited healthcare organizations to maintain focus on the most critical patient safety issues. One of the 2005 goals was to reduce the risk of patient/resident/client harm resulting from falls. Click here to read entire article


THE CODE OF ETHICS FOR ARBITRATORS IN COMMERCIAL DISPUTES
The American Bar Association has adopted standards that dispute resolution professionals should follow in serving as neutral. The following MODEL STANDARDS OF CONDUCT FOR MEDIATORS and THE CODE OF ETHICS FOR ARBITRATORS IN COMMERCIAL DISPUTES is worthwhile reading for anyone considering using an intermediary in his or her civil case. Specific standards have been adopted in California that vary somewhat from the ABA model rules. Parties and neutrals are encourgaged to familiarize themselves with the rules in their own jurisdictions before their mediation or arbitration. Click here to read entire aricle


TAX CONSEQUENCES ASSOCIATED WITH SETTLEMENT
Many parties are of the belief that settlements have no tax consequences. That is not always the case and lawyers should be able to spot tax ramifications issues in their cases and advise the parties before finalizing any settlement. Click here to read entire article

Previous Publications

NEW MEDICARE REPORTING AND RECOVERY RIGHTS IN LIABILITY CASES
The Federal Government has created new affirmative duties for beneficiaries, insurers and lawyers to protect Medicare's interest in liability and other cases. Starting October 1, 2010 insurers and self-insured must report all settlements, judgments and awards of individuals who are either over 65 or under 65 and have received Social Security disability benefits for at least 24 months and perhaps of others who have end stage renal disease. Click here to read entire article