The Official Blog of Bidari Civil Defense
What is mediation?
Mediation is a form of alternative dispute resolution that attempts to help parties facing civil litigation improve communication, minimize harm, and find a compromise that is acceptable to all parties without going to court. A neutral third party-the mediator- assists the parties to negotiate a settlement in a variety of situations, such as legal or family matters. In effect, the mediator’s role is not to reach a decision, but to help the parties reach their own decision.
What are the advantages to mediation?
A mediator may charge a fee comparable to that of a civil defense lawyer, but the mediation process usually achieves resolution in a matter of hours or days, rather than the months or years it can take to resolve the issue in court. Usually the fact that involved parties are willing to negotiate means they are ready to find a solution sooner rather than later, which can save everyone involved time and money.
Mediation is also strictly confidential, which can be advantageous in a situation in which discretion is important. Mediation places such importance on confidentiality that in most cases the traditional legal system cannot force a mediator to testify in court. As a civil defense attorney in Orange County, I can tell you some mediators destroy their notes taken during meetings once that mediation has finished. The only exceptions to these stringent requirements are mandated reporting situations such as child abuse.
Thirdly, mediation is likely to produce an agreeable result for all involved because solutions that emerge are not controlled by a judge or jury. The extra room for discussion usually means both sides get more of what they want. In turn this increases overall satisfaction and further reduces costs because the parties don’t have to hire an attorney to force compliance with the settlement.
Finally, mediators are licensed professionals that are trained to work in difficult situations. Mediators are there to guide the parties to think “outside the box”, and their excellent communication skills are often able to preserve the relationship the parties had before the dispute.
What are some drawbacks to mediation?
Unfortunately, mediation does not always end in agreement. Parties might spend their time and money in mediation only to find they must have their case settled by a court of law. Therefore, opting for mediation does pose some risk. Further, if mediation fails, much of a party’s strategy for building a case to win in court may have already been exposed.
Mediation also lacks formal procedures and constitutional protections guaranteed by in court. Parties that exhibit a mismatched level of power or resources may not be able to find a fair settlement since the less well-positioned party can easily become overwhelmed. A timid party runs the risk of losing some of what is legally owed if the other party is aggressive and dominates the process.
Additionally, legal precedent cannot be set in mediation. Many discrimination cases, for example, are brought with the intention of not only satisfying the plaintiff, but also with hope of setting a legal precedent which will continue to have a greater social impact. This outcome can only occur if a high court, usually the Supreme Court, hands down a favorable decision on the main issue.
Lastly, mediation has no formal discovery process. If one of the parties in a dispute cannot fully address the case without receiving information from the other party, there is no way to compel disclosure of such information. The party seeking disclosure must rely on the other party’s good faith, which may not be enough.
If you need a civil defense attorney in Orange County to help you decide if mediation may be a good fit for your situation, give us a call today! We have professional and knowledgeable attorneys standing by to assist you in Fullerton, Brea, Placentia, or anywhere in Orange County. Contact us at (714) 525-5570.
What is an arbitration agreement?
As a leading civil defense attorney in Orange County, I get asked this question a lot.
An arbitration agreement is a written contract in which two or more parties agree to utilize a neutral third party- the arbitrator- to resolve a dispute instead of pursuing any legal claims against the other party through a lawsuit. The arbitration agreement is usually a clause in a more extensive contract, but may also be a separate document required to be signed by an employee in the hiring process when starting a new job.
Arbitration can be voluntary, but in most cases is mandatory when present as a stipulation of a consumer contract or when completing new hire paperwork as an employee. Mandatory arbitration can only come from a contract that is voluntarily entered into by both parties, even without necessarily knowing if a disagreement will ever actually arise. The dispute may be about a faulty product, a claim of discrimination or wrongful termination in the workplace, or a variety of other issues.
Presently many consumer contracts for cars, cell phones, credit cards and nearly everything else contain a fine-print clause stating if the customer has a problem with the company, the matter will be handled in arbitration rather than in court. Unfortunately, consumers and employees often don’t know in advance that they have agreed to mandatory binding arbitration by purchasing a product or taking a job. Many retailers also fail to mention the arbitration clause before requiring the customer to sign the purchase agreement.
The Disadvantages of Arbitration Agreements
Being aware of the possible drawbacks of arbitration can help you make an informed decision about whether to enter or remain in a contract that mandates it, or whether to choose it as a resolution technique if a dispute does occur at a later time.
- Firstly, arbitration does away with juries entirely, leaving matters solely in the hands of the arbitrator, who essentially acts as both judge and jury. From most individuals’ and consumers’ points of view, having a jury of their peers is an important right when seeking restitution of a claim.
- Additionally, arbitration limits the amount of information each side is required to give to the other. In most employment cases, this generally hurts the employee, because the employer is usually the one in possession of most of the documentation relating to the employee’s case.
- Most importantly, arbitration decisions usually cannot be appealed. If the arbitration is mandatory and binding, the parties waive their rights to use the court system and have a judge or jury decide the case. If the arbitrator’s award is unfair or illogical, a consumer may well be stuck with it without a chance for recourse.
Leveling the Playing Field—Smart Steps for Consumers and Employees
Given the possible perils for those who enter into arbitration contracts, the astute consumer or job applicant can take a number of steps to become better informed and possibly prevent a negative experience.
Any civil defense attorney in Orange County will tell you to read any and all documents presented in a contract carefully! When you sign a contract, letter, sales agreement or any other document you agree to all the terms enclosed, even those that you didn’t read or don’t completely understand. To protect yourself from unwittingly giving up your rights, don’t sign any document acknowledging you’ve read something and agree to the terms unless you actually have read it and understood it completely.
Secondly, pay close attention to any and all changes made to an existing agreement. If a company updates the terms of a contract to include mandatory arbitration, it must notify you in writing first. Some of these notices may come hidden at the back of an envelope itemizing your bill from a credit card or insurance company. Resist the urge to recycle these notices on sight, and read the fine print.
Thirdly, don’t be afraid to speak up! If you find an arbitration clause objectionable for any reason, make your feelings known to company management. There may be a possibility to negotiate if the company wants your business, or you as an employee badly enough. Especially in employment cases, you may have more power than you realize to negotiate the terms of an agreement to align with your best interests, just like you would when discussing your salary or benefit requirements. Ask for a clause that provides options for choice of arbitrator and a requirement that if the company does insist upon enforcing an arbitration agreement that they pay for the process, should the situation ever arise. An arbitration agreement that is disputed using the court’s judicial arbitration services is only $150, but if a company insists on using a private arbitrator the parties will be required to pay the arbitrator’s market rate, which can easily turn into thousands of dollars as time goes on.
Arbitration can be dangerous and expensive. Be watchful for it and careful before agreeing to it.
Mediation, on the other hand is another matter and I will discuss that issue (and its benefits) in a separate blog.
Lastly, always remember that even if you do fall within an arbitration clause, you still have the right to be represented by an attorney throughout the arbitration process.
Paymon Bidari is a civil litigation attorney in Fullerton, Orange County.
Should legal disputes be negotiated and settled before civil litigation commences?
Absolutely- so long as the delay in filing the suit or seeking protective orders does not jeopardize the preservation of evidence and/or assets. One of the most useful and economically efficient things we can do as experienced trial attorneys is to keep our clients out of court- as much as possible, and instead prevent, negotiate and/or settle accordingly.
Often times, the parties (and/or their attorneys) act in haste in filing a suit, and hence commencing an often costly process without first attempting to informally resolve the matter. Litigation should be the last resort- as surgery should be in the medical field. However, when all efforts to heal the patient have failed, then surgery may be the only choice- as sometimes is the case in the legal field. Negotiations and settlement is an art and may be involved; however, if there is any chance of resolution, then all efforts should be exercised, and exhausted, before litigation commences.
Clients should be afforded several options before deciding to proceed with (or without) litigation. Attorneys should evaluate the facts and law, and develop strategies and arguments in preparation and presentation of their settlement offer. Negotiating and settling lawsuits should be a major priority of litigation attorneys when appropriate.
Realizing trial and litigation can be costly (both monetarily and non-monetarily), attorneys must do everything possible to negotiate and settle disputes before the client spends unnecessary money litigating.
If you have further questions about your legal disputes, please contact Orange County Civil Litigator Paymon Bidari for a free consultation today. (714) 525-5570
Pham v. Ramirez, et al. (00749808)
- Attorney for Plaintiff: Larry H. Parker’s Office
- Attorney for Defendant: Bidari Civil Defense
- Claim: $5M for Wrongful Death
- Resolution: Case Dismissed in favor of Defendants
This unfortunate wrongful death case arose out of claims that decedent was attacked by Defendants’ dog causing decedent to fall, break his head and subsequently pass away.
Decedent’s estate sought five million dollars ($5M) in this wrongful death case filed in Santa Ana Superior Court. A jury trial was demanded by Plaintiff’s estate. Bidari Civil Defense defended.
After the initial completion of discovery, Defendants moved to dismiss the case without paying any money. read more…
By Paymon Z. Bidari at Bidari Civil Defense.
Almost nothing is more aggravating to a client than to leave a legal project or case in a lawyer’s hands and then have weeks or even months go by without anything happening. You want a lawyer who will work hard on your behalf and follow through promptly on all assignments.
As such, you would agree finding and hiring the right lawyer can make all the difference.
The first question one should ask before hiring a lawyer is:
Do I even need a lawyer?
Determine if it is possible and prudent to solve your own legal problem without the necessity of hiring a lawyer. In many cases, you may be able to solve your problem without an attorney’s help.
For example, if you are dealing with a regulated industry, there may government agencies in charge of supervising the business entity against which you may have a claim. read more…
By Paymon Z. Bidari at Bidari Civil Defense.
Every valid contract has certain foundational elements. Here is a summary of those elements. If one element is missing, there is NO valid contract.
- Offer and acceptance
- Intention to create legal relations
- Legal capacity
- Illegal and void contracts
Offer and acceptance
A contract is formed when an offer by one party is accepted by the other party. read more…