A. Overview
Most civil disputes resolve before trial, but often only after substantial expense, delay, and stress. Mediation creates an earlier opportunity to evaluate risk, exchange proposals, and pursue a confidential resolution on terms chosen by the parties. The mediator facilitates the process but does not rule on or otherwise impose an outcome; settlement occurs only by agreement.
The Value of an Attorney Mediator
David’s decades of litigation experience helps parties and counsel evaluate how discovery, motion practice, cost, timing, and uncertainty affect settlement—while he remains neutral and independent.
Mediation at Any Stage
Mediation may be effective before a lawsuit is filed, early in litigation, after discovery or motion practice, or as trial approaches. It is rarely too early or too late to explore resolution.
Confidential, Flexible, and Practical
Mediation encourages candid discussion without requiring face-to-face confrontation. Separate meeting sessions for the participants can reduce tension and support productive negotiation.
B. The Mediation Process
Schedule
The parties select an agreed date and choose an in-person or remote format.
Prepare
David reviews focused submissions before the session to understand the dispute and the principal barriers to settlement.
Mediate
During mediation, David helps identify disputed issues, assess legal and practical risks, and explore solutions beyond those available in court.
Resolve
If the matter does not settle during the session, mediation may still narrow issues, clarify risks, and lay the groundwork for later resolution.
C. The Mediator Philosophy and Approach
David prepares carefully, manages the process actively, and respects party self-determination. He tests assumptions and helps participants evaluate practical options without assigning fault or pressuring either side to settle.
Neutrality with Active Process Management
Neutrality does not mean passivity. David asks targeted questions, tests assumptions, draws on his experience of what makes a case settle, and helps parties evaluate options while remaining evenhanded.
Respect for Counsel and Clients
Strategic decisions remain with the parties and their attorneys. David respects counsel’s role and creates an environment in which attorneys can effectively advise their clients and explore resolution – and also where clients can speak there mind to be heard and understood.
D. Confidentiality and Mediation Privilege
California law provides strong protections for communications made in connection with mediation. Evidence Code sections 1115 through 1128 broadly protect mediation communications from disclosure and later use, allowing participants to speak candidly and explore settlement without fear that their statements will be used against them.
What Is Protected
Protected communications generally include oral statements, admissions, negotiations, mediation briefs and summaries, pre-mediation communications related to initiating or preparing for mediation, and communications made during private caucuses with the mediator.
Continuing Protection and Limited Exceptions
Confidentiality generally continues after mediation ends, whether or not the matter settles. Waiver ordinarily requires the express agreement of all participants, and statutory exceptions are narrow. Settlement agreements reached in mediation are subject to specific requirements, so careful documentation is important.
General Information Only
This overview provides general information and does not constitute legal advice. Parties should consult their own counsel regarding the application of mediation confidentiality to a specific matter.