Friday, December 15th, 2017

Flexibility of Alternative Dispute Resolution – Bowers v. Raymond Lucia

January 24, 2013 by  
Filed under Newsletters

Alternative dispute resolution (ADR) offers attorneys and their clients’ a number of options, each procedure presenting a variety of benefits to best suit the specific situation. ADR, including but not limited to mediation and arbitration, offers attorneys and clients flexibility that contested litigation simply cannot offer. Parties can even switch from one process to another—without a prior agreement, no one is bound to any one form of ADR. The San Francisco Bay Area Mediation Office of Kevin C. Coleman encourages legal practitioners to consider different forms of ADR, but cautions that any legal agreement must be clear on the chosen process.

Mediation/Binding Baseball Arbitration in Bowers v. Raymond Lucia

In a written agreement, it is paramount for attorneys to be clear about what ADR procedure is being chosen. For an example of a party claiming the ADR agreement was ambiguous, turn to Bowers et al. v. Raymond J. Lucia Companies, Inc., D0593333 (Cal. Ct. App May 30, 2012).

Plaintiffs sued for defamation and business torts, the parties agreed to proceed to what was designated in the written agreement as “mediation/binding baseball arbitration.” The parties agreed that if the mediated session did not result in settlement after a full day, the mediation would then become a binding baseball arbitration[1] to be arbitrated by the mediator without further introduction of evidence. In other words, following the mediation, the mediator would set a judgment in favor of plaintiffs for an amount between $100,000 and $5 million.

After the day of mediation, the parties had not reached an agreement. The mediator decided on the award of $5 million, which obviously upset the defendant. The trial court declined to enter the award as resulting from arbitration, but enforced the settlement agreement and mediator’s award under Code of Civil Procedure § 664.6. The court held the parties agreed to binding mediation, not a two-step process of mediation and then arbitration, and noted that both counsel were sophisticated enough to know the difference.

Binding Mediation v. Arbitration Considerations for Attorneys

Although the phrase “mediation/binding baseball arbitration” is ambiguous, it was clear in rest of the written agreement, as well as the oral transcript, that the parties meant for the mediator to make the decision at the end of the mediated session. Thus the court enforced the settlement agreement under Code of Civil Procedure § 664.6.

Attorneys must be careful when agreeing to binding mediation. Generally, mediators do not make binding decisions and are privy to confidential information from both parties; arbitrators’ decisions are binding, but they are not based upon any confidential information. When mediation becomes binding, confidential information could impact the mediator’s decision.

Parties are Not Limited to a Single Form of ADR

When included in the discussion of ADR choices, clients are more likely to feel satisfied with the outcome. There are several different processes attorneys and their clients can use, including mediation, binding mediation, arbitration, “binding baseball arbitration” and high-low arbitration; these are all flexible procedures, and clients are not bound to any one form. However, attorneys should be cautioned that parties should only agree to multiple forms of ADR in a few extreme situations, and attorneys cannot afford to have any ambiguity in the agreement setting forth the form of dispute resolution.

Kevin Coleman is a certified mediator who performs mediation services throughout the San Francisco Bay Area, including San Francisco, Marin County, Alameda, Contra Costa, Sonoma, outlying counties and throughout the state.

Contact Bay Area mediator Kevin Coleman online or by calling 415-488-7609.


[1] Baseball arbitration refers to the process used in Major League Baseball whereby each side gives the arbitrator an amount, and the arbitrator decides by choosing one number.

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