Silencing Liability

By Max Factor III, Esq. on October 12, 2007

Topic:

It was seven hours into a heated mediation between two businessmen, each of whom were prepared to engage in a self-destructive dissolution of their construction company. "I just don't get it!" the majority partner said. "The federal tax returns and audited financials clearly show the proposed buyout of your 35 percent share is more than equitable. And, after seven hours of negotiation, we are willing to pay a premium for your minority interest."

"What will make this deal work?" I asked.

The minority partner responded, "I will accept a cash settlement, but it must be based on the set of books he uses for himself and kept in his private safe, and not the set of books he uses to show his wife or his accountant."

An Angry Negotiator is Too Often Happy to Strike a Poor Deal

By Max Factor III, Esq. on August 18, 2007

Topic:

Originally published in the Los Angeles Daily Journal "Forum Section" Friday, August 17, 2007

Understanding the Effects of Anger in the Negotiation Process

The car salesman has just returned and counsels you: " I am so sorry. My sales manager says no lower than $24,550, out the door, taxes, license and all. Period."

Your research has told you that the car is usually sold for between $23,500 and $24,000, out the door. This stuff with the sales manager’s approval being needed is, you believe, hogwash. You are furious!

What “The Practice” Could Learn From “ER”

By Max Factor III, Esq. on August 25, 2005

Topic:

Lessons from the Harvard Medical School Keynote Address, June 2005

In seventh grade at El Rodeo Elementary School, I completed an English essay by writing: “Why do I want to be an attorney? I want to help other people who are less able to represent themselves.” The date was December 1956.

Mrs. Ritter, my English teacher, gave me an “A minus” and neatly wrote at the top of my essay, “Good Paper. I hope you are not disappointed with being a lawyer.” At the time, I did not understand what she meant, but I was pleased with the grade.

Early Mediation Preserves Value of Disputed Property

By Max Factor III, Esq. on March 25, 2005

Topic:

The mediation landscape has changed for single-family residential real estate disputes. In the recently decided case of Frei v Davey (Dec. 17, 2004) 2004 DJDAR 15051, a prevailing party was denied recovery of any of the more than $120,000 incurred to defeat a plaintiff’s action for specific performance and to cause the Buyer’s lis pendens to be removed. The prospective defendant seller and plaintiff buyer had entered into a standard CAR Residential Real Estate contract for the sale of the defendant’s home.

They Say It’s About Dollars, But It’s Often About Emotion

By Max Factor III, Esq. on March 1, 2005

Topic: About Mediation

How to Use Mediation To Restore Business Judgment To Business Disputes

Business executives are supposed to be creatures of logic, carefully weighing costs and benefits. Yet some mediations fail even when there are several sensible alternatives, any of which would offer the disputants as good or a better a result than each of them would expect from other likely outcomes of the dispute.

Better Practice Tip: Recognized Exceptions to Mediation Confidentiality

By Max Factor III, Esq. on January 1, 2005

Topic:

You are representing a client at mediation. You know the general rule: what happens in a mediation is confidential. However, during the course of the mediation, perhaps you observe that the mediator favors the other side. Or a party makes certain statements at the mediation which lead you to realize that the judge in your case has a material undisclosed financial interest. Perhaps a party appears medicated, unable to appreciate the meaning of the settlement reached at the mediation. Can anything be done? In many cases, the answer is yes.

Some Mediation Contracts Need Confidentiality Aspects

By Max Factor III, Esq. on September 16, 2004

Topic: About Mediation

In California, the State Legislature and the Supreme Court take the notion of Mediation Confidentiality quite literally. Rojas v. Superior Court (Coffin) (2004) XX Cal. 4th XX.

Unfortunately, shrewd legal counsel may turn the “public policy” goal of that confidentiality shield on its head. Their technique: prepare accurate evidence which is adverse to their client’s position and introduce it as a document at Mediation, with the assurance that this “truthful writing” will be cloaked in the Invisibility Shield of Mediation Confidentiality! The truth seeking which is supposed to be an integral part of the adversary process instead morphs into a tool for hiding the truth.

Is Duck Hunting for Mediators?

By Max Factor III, Esq. on September 1, 2004

Topic: About Mediation

One in a series of articles exploring the ethical dilemmas of mediation participants.

Supreme Court Justice Scalia has been requested by the Sierra Club, a litigant with an appeal pending involving Vice President Cheney and the White House task force he headed to develop the Bush Administration’s national energy policy, to step down from consideration of this case.