THE IMPORTANCE OF NEUTRALITY

Attorneys benefit from a unique educational experience that trains us to look at problems and challenges from all sides. We learn to think like lawyers, being able to examine issues dispassionately, seeking to find solutions for the benefit of our clients no matter what side of a dispute we are on. In fact, when representing a client, we frequently try and consider what the opposition would do to defeat us as a method of planning our strategy.

However, in the world of litigation, this broader “two-sided” view of issues and disputes, while helpful, is frequently only one tool used by attorneys. Litigators are, by definition, advocates, and when it comes to trials, mediations and arbitrations, their job is to steer the proceeding or discussion to a view of the dispute that puts their client in the most favorable light possible.

Importantly, the ability to view both sides of an issue returns to the fore when a lawyer moves from the position of advocate to becoming a “neutral” – as a judicial officer, arbitrator or mediator. Making this transition – moving back to the mindset of taking a holistic view of a problem – requires a conscious effort to shed the sword of advocacy for the cloak of neutrality. Neutrality after years of advocacy means accepting the challenge of taking a fresh look at issues that are presented and disputes which require resolution.

The task is not a simple one. It requires the effort of distinguishing between the knowledge one has on a subject from the bias one may have for one side or the other. Having recently undertaken this transition myself, I have found the following considerations to be helpful in this process:

1.    Read the mediation or arbitration briefs carefully. Serving as a neutral in connection with a dispute involving an area of law with which the neutral is very familiar invites “skimming” the briefs. This can easily result in having the neutral’s bias creep into the proceedings.

2.    Ask questions. If a party’s position or argument is unclear, it is the neutral’s obligation to seek clarification. In mediations, both sides are entitled to the neutral’s full and complete understanding of their respective positions.

3.    Limit your decision. In regard to trials and arbitrations, a neutral’s decision should be crafted to fall within the four corners of the dispute presented, and no further.

4.    Know your role. While a neutral may well serve the role of trier of fact in an arbitration or trial, that role is much different in a mediation. The neutral must keep foremost in his/her mind that the role of a mediator is to help move the parties to a mutually acceptable resolution, and that taking a hard and fast position for one side or the other will ultimately result in a lack of credibility that will hamper the neutral’s effectiveness.

 

Selecting a Neutral at Case Inception

Selecting a Neutral at Case Inception Every attorney who works as a litigator knows that litigation is a stressful and often frustrating exercise. Experienced litigators strive to provide the best representation for their clients while attempting to find ways to work cooperatively and cordially with opposing counsel. However, despite the efforts of well-meaning attorneys, it is the rare case where time-consuming disagreements do not interfere with the process. Simply stated, I suggest that the parties select a professional “neutral” at the case inception to be available to resolve issues that present roadblocks to the cooperative and efficient progression of litigation. This approach addresses what I would call low-grade to moderate litigation-related disagreements, which I believe would save time and money—and lower litigation stress—for attorneys and their clients. An early-selected neutral, with the agreement of both sides, could easily resolve issues such as (1) the order of taking depositions, (2) disputes over deposition locations, and (3) minor to moderate discovery disputes without the necessity of bringing motions and briefing issues that are easily handled in a telephonic conference, etc. By selecting a neutral at the commencement of the litigation, the neutral will become familiar with the basic legal issues and facts, thus enabling him or her to provide swift, efficient and cost-effective assistance to the attorneys. Using this method, the parties can either agree that the neutral will only act as a “facilitator,” who attempts to get the parties to resolve their dispute by suggesting solutions to both sides. Or, if they wish, the parties can designate the neutral as the “decision-maker” for issues that they mutually agree should be presented to their neutral. The underlying concept is to create a method by which the parties can swiftly and cooperatively resolve the issues that normally arise in litigation. By agreeing to this method, neither side makes any concessions. The selection of a neutral for this process does not represent a commitment to attempt to resolve the case at a later date. It simply represents an acknowledgement that both sides share equally in benefiting from finding the smoothest path to moving the case forward – whether to trial or settlement.

GO ON, SHARE WITH OPPOSING COUNSEL

Los Angeles Daily Journal: November 13, 2015

Mediations are unique in the litigation field in that ex parte communications with the mediator are permitted. The underlying justification for this rule is that it promotes candid communication between attorneys and the mediator, thus increasing the chances of a mutually satisfactory settlement.

With this in mind, the common practice is to designate mediation briefs as “Confidential: Not to be Shared With Opposing Counsel,” or a similar notation. This is understandable and a valid position for counsel to take in order to be fully candid with the mediator. However, in many, if not most, situations some sharing of information prior to the mediation by the parties can often have a very positive impact on the mediation process itself. While it may not be practical to share an entire mediation brief with the other side, an abridged version can often prove very useful to your side.

There are numerous situations where sharing a portion of a mediation brief with opposing counsel can prove useful. Some examples follow:

Data Analysis

Often prior to mediation, the par- ties have engaged in formal or informal discovery that has included the sharing of important data. By example, in the employment field, items such as weeks worked during the claim period, average hourly wage rate, etc. are important items in connection with damage calculations. Sharing the results of the analysis of these data prior to mediation can often avoid problems that can slow down or even derail a mediation. If the plaintiff assumes the average hourly wage rate provided by the employer includes consideration of non-discretionary bonuses, and the defendant employer, in fact, did not include the same in the provided rate, the parties may well have significantly different calculations of potential damages. By resolving those differences prior to the mediation, significant time can be saved for discussing the issues that truly impact the ability of the parties to settle. Merely agreeing on the mean- ing of data and understanding how both sides use these data does not constitute an admission by either side in connection with liability.

I have handled several mediations where the parties exchanged the results of their data analysis and found them to be substantially different. This was disclosed by both sides during pre-mediation telephone conferences. I encouraged both sides to meet to determine why the two sides came to different results while us- ing the same data. In each case, the pre-mediation resolution of these problems set the stage for a successful mediation.

Factual Conclusions

Often, mediations can turn upon facts that are in dispute between the parties. In the simplest of examples, the issue of which party had a green light at an intersection where a T-bone accident occurred can be a critical issue. If you are going to firmly take the position that you can prove this fact, then letting the other side have some knowledge of the factual conclusion you are relying on, and the basis for that reliance, focuses both sides on this important issue that may be critical to case resolution. While the other side may be sure they can disprove the very fact you are relying on, the highlighting of this issue before the mediation can mean that both sides are pre- pared to address the same. Any time the parties at mediation are talking about the same issues, the odds for resolving a case improve.

Dispositive Legal Arguments

Raising a purportedly dispositive legal argument for the first time at mediation is counter-productive. Few attorneys will cave at mediation under these circumstances. If you believe you have authority that resolves all or part of a matter, dis- closing your position in a shared mediation brief gives the other side the opportunity to be prepared to respond at the mediation. This permits the mediator to have a balanced presentation of a legal argument so that he or she can give neutral input as to the efficacy of the argument or of the response thereto. Keep in mind that the purpose of mediation is to reach a mutually satisfactory result. Mediation is usually not the place to “win” your case.

Expert Reports

If you intend to use an expert’s report or conclusions at mediation, consider disclosing the conclusions in your abridged mediation brief. While attorneys are always sensitive to disclosing their experts, as well as the experts’ opinions, early in the litigation process, giving the other side some information of what will be argued by your side at the mediation can be very helpful. In doing this, you would not necessarily have to identify the expert as opposed to disclosing the expert’s opinion (keeping in mind that it would be unethical to create an expert opinion out of whole cloth, as this would amount to a misrepresentation of a material fact at mediation, which is strictly prohibited. See Business and Professions Code Section 6128; ABA Model Rules 4.1 and 8.4).

Financial Impediments

It is not unusual for defense counsel to raise his or her client’s strained or dire financial condition at mediation as a way to convince the other

side to lower their settlement expectations. While this is certainly an acceptable mediation position to take, raising this issue for the first time at the mediation itself is often a huge stumbling block to settlement. An experienced plaintiff’s attorney may well feel the need to do his or her own due diligence to investigate the defendant’s financial position.

Often, I learn of this type of financial problem during a pre-mediation phone conference with defense counsel. I encourage defense counsel to provide whatever written documentation he or she has avail- able to opposing counsel to substantiate the claim of financial hardship. To facilitate this, I suggest an email agreement from both sides that the exchange of this financial information prior to the mediation is subject to the mediation privilege. Once this is done, the information is provided as part of the defendant’s shared abridged mediation brief.

It can be difficult for attorneys to agree to voluntarily disclose information to opposing counsel. However, in the mediation context, carefully considered and thoughtful pre-mediation sharing of information can prove beneficial toward the result your client likely wants — an acceptable settlement.

ON YOUR MARKS, GET SET, MEDIATE!

To be successful, a mediation should start long before the formal gathering of the parties. In fact, the process of resolving a case through mediation starts at the commencement of a case, and involves a series of actions by all involved that can facilitate or hinder the formal mediation hearing.

A successful mediation is rarely a “static” event, with little that precedes it having an impact on the outcome. Rather, it is a dynamic process which, if considered from the inception of a case, can lead to a result that will satisfy (if not please) the litigants. The fact is that the vast majority of civil cases ultimately settle, and mediation appears to be the prime vehicle driv- ing those results. Still, attorneys can bolster the chance of not only reach- ing a settlement, but reaching one with less animosity and greater acceptance by all involved.

The following are some of the key “way points” in the litigation of a case that can aid in the ultimate resolution of litigation to the satisfaction of your client:

First Contact Between Counsel

The initial contact between opposing counsel can be critical. Expressing — and following through on — an honest willingness to be cooperative, to extend professional courtesies, and to attempt to avoid unnecessary motion practice can go a long way to forging a fruitful relationship. As experienced and successful litigators know, being cooperative, courteous and professional does not mean giving up your passion for representing your client to the best of your abilities. These attributes help create an atmosphere where you can work vigorously and effectively, with the realistic knowledge that ultimately you have to talk to the attorney on the other side about settling the case for your client’s benefit.

If an attorney’s word is proven to be truthful early on, then representations made during a mediation tend to be given a great deal of credibility. If op- posing counsel is not angered by hav- ing to respond to endless and essentially unnecessary pre-trial litigation, she is more likely to approach the mediation in a non-confrontational and cooperative manner. Simply put, there is little benefit to being an uncooperative and confrontational opponent, and great benefit in being viewed as a reasonable and capable adversary.

Realistic, Reasonable Discovery

Discovery is an essential tool in litigation, and is often a foundational prerequisite to a successful mediation. Experienced litigators are unlikely to engage in the necessary “give and take” of a mediation if they feel that either they have been bombarded with irrelevant and harassing discovery requests, or more importantly they believe the other side has been actively withholding information in discovery.

Too many mediations are stalled by complaints by one side or the other that they have been denied important, required and sought-after discovery. There is no benefit in wasting time and effort at a mediation debating what has or has not been produced. This results in the mediation degenerating into the mediation of discovery disputes, as opposed to being an at- tempt to actually resolve a case. Time and again, a second day of mediation is necessary because the first day was spent resolving discovery issues that should have been resolved much earlier.

Disclosure of Information

Whether asked for or not, it is vital that both sides provide all information they have in their possession that the other side would reasonably request as foundational to a settlement. In most mediations, this means information and data from which each side can prepare their own damage calculations.

It is important to keep in mind that information can be produced for mediation purposes only, and that such information is not subject to disclosure simply because it was disclosed in mediation. See California Evidence Code Section 1119. A simple exchange of emails confirming that specific information is being disclosed for mediation purposes only, and an agreement by the other side

with this proposition, will protect your client and allows for full disclosure. No doubt, attorneys sometimes have to balance what they disclose in the hope that mediation will be successful, with the concern of not revealing too much if it proves not to be. It’s best to err on the side of greater disclosure, leading to increased chance of resolution. And, if the information is truly not subject to discovery, disclosure in mediation does not change its protected character.

Exchange of Mediation Briefs

Attorneys are often reluctant to exchange mediation briefs for reasons ranging from want to “surprise” the opposition at the mediation, to an un- willingness to allow the other side to review a discussion of information that will not be ultimately disclosed to the other side at the proceeding (i.e., the financial condition or needs of a party that might impact settlement value).

In most cases, this reluctance is not well grounded. The benefit of exchanging briefs is based upon the premise that the parties approach mediation with an honest intent to resolve the litigation. To do that, giving the other side an opportunity to review, evaluate and prepare a response to your arguments prior to the mediation means that the actual discussion can get to substantive issues quicker and more efficiently.

It is understandable that an attorney might not want opposing counsel to see an unabridged version of a brief, particularly if it contains a frank discussion of the weaknesses of a position as well as the strengths. I have frequently seen “abbreviated” briefs, where the parties agree the exchanged briefs will be limited to topics such as a statement by each side of the facts as they see it, and a discussion of disputed legal issues. These prove quite helpful so that the mediation itself can address factual and legal issues in dispute earlier in the process.

I have been asked by attorneys if I think damage calculations and demands should be provided in these abbreviated briefs. There is no one right answer. However, providing the other side with a demand or offer in an exchanged brief — despite the fact that both sides know these are “opening” numbers only — can result in a knee jerk reaction that can jeopardize a mediation. Thus, I generally recommend against it.

Pre-Mediation Conference

The final step in the first stage of mediation is a pre-mediation telephone conference with your mediator. In today’s mediation practice, these calls are quite common and serve a useful purpose, if either sides wishes it. This conference, with each side speaking separately with the mediator, gives the attorneys an opportunity to give the mediator a “heads up” in regard to any particular issues that might present a roadblock to resolution. This can range from communication problems between counsel, to discussions of lack of cooperation in providing necessary damage data. Armed with this information, the mediator can take steps prior to the mediation to attempt to remove these roadblocks. For example, a call from the mediator to an attorney reluctant to provide the other side with critical information prior to the mediation usually results in a change in that dynamic. Thus, the pre-mediation conference is much more than a quick “how do you do” with your mediator. It is a critical part of the mediation process itself.

Viewing mediation as a dynamic process that begins at the very inception of a lawsuit can have a major impact on your ability to assist your cli- ent in resolving a case. Keep in mind that your case will likely result in a mediation, and planning ahead will increase the likelihood of success.

DISCLOSING FINANCIAL DATA IN MEDIATION

Los Angeles Daily Journal: March 11, 2016

The financial status of a defendant be- comes a critical issue in a mediation. This can be particularly true when either there is a complete lack of insurance that would cover the event/injury involved, or the applicable insurance coverage is likely inadequate to cover the claims by the plaintiff. Either of these situations often result in the need for a review of business financial records to justify settlement offers below a reasonable value for a case.

The situation involving a complete lack of coverage is relatively obvious. With no coverage, the defendant must look to its own assets and cash flow to resolve a case, and a claim of financial stress clearly becomes a factor in settlement discussions. In the second situation, when there is coverage for something less than the full value of the claim, if a defendant claims a lack of financial ability to contribute to a settlement beyond the insurance coverage, the company’s financial standing likewise becomes an issue.

The challenge faced by litigators is when and how this issue should be addressed in connection with a mediation. Simply put, there is often a strong and understandable reluctance to permit opposing counsel to review a client’s financial re- cords until absolutely necessary. Thus, some defense attorneys appear to favor withholding that their client is financially challenged, as well as the specifics of the same, until the mediation itself, springing the information on opposing counsel as if it is a settlement argument in defense counsel’s client’s favor, rather than an impediment to resolution. I would argue that is a serious mistake that can clearly jeopardize the chance for a successful outcome, and often results in unnecessary second or follow-up mediation sessions.

In most situations, I would counsel a multi-step process to disclosing the details of a defendant’s financial challenges to opposing counsel. Some defense attorneys appear to favor withholding that their client is financially challenged until the mediation itself. I would argue that is a serious mistake. First, at a reasonable time prior to the mediation, plain- tiff’s counsel should be informed that the financial status of the defendant, and its ability to pay all or part of a settlement, will be an issue. It is not necessary at this time to go into great detail, but it is important to building and maintaining trust with the other. Once the existence of financial challenges has been disclosed, one of two following steps should be taken.

In the relatively rare situation where the financial records are uncommonly complex and may require review by an accountant, the parties should consider agreeing to the defendant providing the same prior to the mediation under the protection of the mediation privilege (Evidence Code Section 1119). The parties can, and should, agree to specific terms as to how the information is handled, and who may review the same. The parties may agree to provide the information to a neutral accountant for review, with a report being provided to both sides, and the actual specifics being withheld from the plaintiff. By example, an independent accountant may be asked to only provide an opinion as to whether or not the defendant lost money in the previous year and, if so, the extent of that loss. That may be sufficient information for the plaintiff’s counsel to be satisfied that there is a real issue as has been represented.

However, in the majority of cases, and for many cautious defense counsel, this might be a step too far (and unnecessary) as they feel there is no valid reason to disclose the details of their client’s financial condition unless and until a settlement has been reached. In those situations, and in the case of less complicated financial records, I encourage the parties to bring a copy of the records to the mediation. At the mediation, the defense counsel should make a clear representation about those specific aspects of his client’s financial condition (be it insurance coverage, cash flow challenges, etc.) that the attorney feels will impact the settlement process. This should be done quite carefully, with the clear knowledge that the statements will be verified by a review of financial documents at the end of the mediation.

With the representation having been made, the parties should be able to commence their discussions with an eye toward settling the case. The situation has a certain amount of built-in tension, as the plaintiff’s counsel may want to continue arguing to recover what he/she sees as the full value of the claim, regardless of the impact on the defendant. It is the job of a good mediator to make it clear that it is unlikely that a defendant would jeopardize its corporate existence to satisfy a claim via settlement, and that a reasonable accommodation must be made for the defendant’s financial challenges.

If a settlement is reached, it is tentative, subject to a review of the defendant’s financial records, including its balance sheet and profit and loss statements. What I have done in these situations is to encourage plaintiff’s counsel to make sure that he/she will be capable of reviewing the financials at the mediation or, if not, having someone present who will be able to do so. In many cases, the defense will not be willing to permit the plaintiff or his/her attorney to make copies of the financial records, and the solution to this is to make sure the review can be conducted at the very end of the mediation. The plaintiff’s attorney meets his or her obligation to his or her client by conducting this review at this time and verifying the representations made by defense counsel.

In my experience, I have not seen a settlement fall apart using this technique because the representations made by defense counsel prove to be untrue. Since defense counsel have an ethical ob- ligation to make honest and accurate representations to opposing counsel that opposing counsel may rely upon in connection with the mediation, factually accurate and unadorned information is what is normally shared with plaintiff’s counsel.

By breaking the mold of hiding a defendant’s financial challenges, which would impact its ability to resolve a case until the commencement of the mediation, greater opportunity for success is possible. The proposal set forth in this article re- quires the cooperation of counsel for the benefit of each side’s client.

STEPS FOR A SUCCESSFUL CLASS ACTION MEDIATION

Los Angeles Daily Journal. March 14, 2014

Successfully settling a class action through mediation re- quires considerable expertise in class action litigation. While the first step is to find a mediator experienced in class litigation, the work does not end there.

Before discussing the various factors that counsel should consider, it is important to decide when these factors should be addressed. My practice has been to raise the “nuts and bolts” demands either shortly before the scheduled mediation or at the very onset of the process. The reason is that the items discussed below may have a significant impact on the parties’ willingness to settle. The best practice is to address these items in a letter to opposing counsel and their mediator far enough before a mediation to allow both sides to consider the same and prepare, at a minimum, to craft their position as to each so that a meaningful give and take can occur.

Ultimately, in addition to having the amount of a settlement agreed to, the following issues should also be resolved within the context of either a memorandum of understanding (MOU) or, in rare situations, a formal settlement agreement:

The Class Definition: If the class has not yet been certified, having a clear and well-defined class, and specifying any individuals or categories of persons who are excluded from the class, is critical. Even if the class has already been certified, it is not unusual for a party to want to expand or modify the class definition to obtain a more global release for the defendant. Doing this up front avoids future disagreements.

The Class Period: While the pleadings may have defined the class period as starting on a date prior to filing and ending “upon the entry of judgment,” the fact is that by settling, the parties are agreeing upon a sum certain to comprise the gross settlement fund. If the actions allegedly forming the basis for a defendant’s liability are ongoing, the damages keep growing, perhaps on a daily basis. With our courts as busy as they are, and in light of the court funding crisis, both the preliminary and final approval of a class settlement can take up to six months. Thus, the par- ties need to agree on the cutoff date: the date the settlement is agreed to, the date a motion for preliminary approval is made, or some other definable date.

The Size of the Class: Class size is a critical factor. Reaching a settlement number only to find that the class is meaningfully larger or smaller than one side envisioned means there is simply no meeting of the minds. Particularly in wage and hour litigation, the full-time equivalent (FTE) number is also important. Thus, while there may be 500 people in a class, the turnover of defendant’s employees may be such that, on aver- age, there are only 300 full-time employees at any given time. The FTE number is the one that an approving court will often use to determine if the settlement is fair and reasonable.

The Type of Settlement: There are two basic class action settlement types: (1) claims made, and (2) non- reversion. In the case of a claims made settlement, all or a portion of the gross settlement amount will be returned to the defendant if all class members do not make claims for their share of the settlement fund. This form of settlement, by definition, requires that class members affirmatively act to claim their share of the fund, despite the fact that their claims may be extinguished if the matter is granted final approval by the court. In a non-reversion settlement, the defendant commits to pay- ing the gross amount with no chance of receiving any reversion of funds. Non-reversion settlements often do not require class members to make claims. The impact of the two types of class settlements will no doubt have a direct impact on the agreed upon gross settlement amount.

The Extent of the Claim Form:

In a claims made settlement (and some non-reversion settlements) the extent of information that a class member must provide can have a direct impact on the level of participation in the settlement. It should be decided what information must be required, as well as what declarations under oath a class member will have to make.

The Calculation of Settlement Shares: Determining the method by which the settlement fund will be divided among class members is crucial. While in some cases this is straightforward (e.g., a consumer matter with a payment for each product purchased), in others it can be complex (e.g., an employment case involving full-time and part- time workers). The issue should be resolved during the mediation negotiations.

The Scope of the Release: The release language in a class settlement agreement is often the most hotly contested issue. Is the class releasing all claims that were (or could have been) raised in the case? Or, is the release limited to specifically enumerated claims? There are, of course, several other variations. What is vital is that the scope of the release is an absolutely critical issue in negotiation.

The Cost of Administration: It is important to have a good under- standing of the anticipated cost of class settlement administration when considering the funds that would be available to class members if a settlement number is reached. Factors like the type of settlement, the length of the notice, the complexity of the claim form, and the extent of the administrator’s involvement with calculation of settlement shares will directly impact the net settlement. It is always good to speak with an experienced claims administrator early in the settlement process.

The Drafting and Signing of a Settlement Agreement: Most successful class mediation sessions end with the signing of a MOU, leaving the drafting of a formal settlement agreement to the future. To avoid de- lays and unnecessary disagreements, the parties should agree (1) which side will take the laboring oar to pre- pare an initial draft of the agreement, and (2) a deadline for completion of the first draft. Once a first draft is out, there is usually little delay in finishing the process.

The Timing of Funding: While there is a two-step process for obtaining court approval of a class settlement, once that is accomplished disagreements may arise as to when funds are to be paid. Since usually are no objections to most class settlements, and only objectors have the right to appeal, plaintiffs’ counsel want funding to take place within a few days of the final approval being granted by the trial court. On the other hand, defendants’ counsel are concerned that an appeal might be filed by someone who did not object, and that an appellate court might entertain the same. Both sides have legitimate positions, thus making this issue ripe for discussion during the mediation.

The proper and comprehensive mediation of a class action takes experience and careful thought. The key is understanding the nuances of your case, communicating your positions early in the process, and employing a mediator with substantial experience in this type of complex litigation, who understands the importance of including these issues in the discussion.

SIX STEPS TO ARBITRATING AN AGE DISCRIMINATION CASE

Fifty years ago, in 1967, the Age Discrimination in Employment Act (ADEA) was passed by Congress. According to the Department of Labor, it protects “employees 40 years of age and older from discrimination on the basis of age in hiring, promotion, discharge, compensation or terms, conditions or privileges of employment.” California has its own version of this law, codified as part of the Fair Employment and Housing Act (FEHA).

Because of the proliferation of employment contracts that mandate that litigation of age discrimination claims be resolved in arbitration, understanding the arbitration process is increasingly important. This article will offer several steps to consider when handling an age discrimination case, with the caveat that it is assumed that the practitioner is familiar with the procedural prerequisite for commencing an action under the FEHA or the ADEA.

Step 1: Determine Which Arbitration Rules Apply

Many, if not most, employment arbitration agreements specify the rules to be applied in the event of a dispute. For example, the agreement might designate the JAMS Comprehensive Arbitration Rules as controlling, as opposed to the JAMS Employment Rules, or the rules of the American Arbitration Association (AAA). Or the agreement may call for arbitration without specifying which rules will apply, in which case JAMS or AAA or will apply the rules of the designated administrator. The parties may agree to choose a different set of rules, or a different company to administer a specific set of rules.

Step 2: Gain a Comprehensive Understanding of the Applicable Rules

It is critical that the practitioner review and analyze the selected rules at the commencement of a case. By example:

a. As referenced above, JAMS has several sets of arbitration rules and sample arbitration clauses at www.jamsadr.com/adr-rules-procedures. JAMS will accept any matter wherein JAMS is indicated in the arbitration clause, wherein another provider is indicated in the arbitration clause but the parties stipulate to JAMS or wherein no provider is indicated in the clause and parties either stipulated or the respondent does not object when the matter is submitted to JAMS.

b. Under JAMS rules, the respondent may file a response and counter- claim within 14 days of service of notice of a claim. Other providers have different time frames. This could impact the filing of a timely counterclaim.

c. Understand the discovery limitations. For example, Rule 17 of both the JAMS Employment and Comprehensive Arbitration Rules is a comprehensive, multi-paragraph rule that covers discovery. Other providers have differing standards.

Step 3: Pay Attention to Preliminary Conference Orders

For JAMS cases, see Rule 16 of both the JAMS Employment and Comprehensive Arbitration Rules for a discussion of what is called a preliminary conference. The topics and issues addressed in these conferences include scheduling the arbitration hearing and issues critical to the case. It is the roadmap for the arbitration process.

Step 4: Understand the Multi-Part Process for Establishing or Defending an Age Discrimination Claim

Both the ADEA and FEHA look to traditional discrimination claims (e.g., race, religion, etc.) for direction as to the nature of the claims that can be raised. There is a difference between a disparate treatment claim, which seeks recovery for age discrimination directed at the claimant, and a dis- parate impact claim, which (broadly speaking) alleges that an employer’s actions, although non-discriminatory on the surface, have a discriminatory impact on employees or prospective employees 40 years and older.

Except where there is direct evidence of discrimination, discrimination cases, including those claiming age discrimination based on either disparate treatment or disparate impact, are subject to a three-part burden-shifting analysis. Once a prima facie case is established, the burden shifts to the employer to offer a legitimate non-discriminatory reason for its actions. At that point, the burden shifts back to the claimant to show that the reasons offered by the employer are a pretext for age discrimination. Understanding this process is important in planning the presentation of your case, regardless of whether you are representing the employer or the employee.

Step 5: Limit Your Evidence

Arbitration is supposed to be a speedy and efficient methodology for handling cases. That benefit, which is a huge one for both sides, is lost when attorneys treat an arbitration as if it were a jury trial. It is not. First, the normal rules of evidence do not apply in most arbitrations unless the parties have specifically stated that they will in the arbitration agreement. Thus, objections as to the form of a question or even relevancy are rarely appropriate and merely delay the hearing. Similarly, the effectiveness of motions in limineshould be questioned. What is the benefit of present- ing such a motion to the ultimate trier of fact when a simple objection can be raised at the hearing?

Step 6: Curb Closing Briefs

At the close of evidence, most attorneys in age discrimination cases are prepared to give comprehensive closing arguments, summarizing the key evidence for their side to the arbitrator. This is an effective tool.

However, some attorneys ask for the authority to file comprehensive closing briefs. If the case is complex, or the facts are somewhat convoluted, or the arbitrator appears unsure of the applicable law, then a brief—in the true sense of the word—can be helpful. But 25, 30 or 50 pages of argument should not be necessary.