Madison County Courts Considering Mandatory Mediation for Complex Civil Cases

In another move to reverse Madison County’s image as a “judicial hellhole,” Chief Circuit Judge Ann Callis announced on Tuesday the formation of a committee to study the use of mediation in complex civil cases. Judge Barbara Crowder, a member of the new committee, said that the court did not have a specific definition of “complex,” but expected it would include cases with numerous legal issues, parties and voluminous exhibits or documents.

Madison County Record

California Court of Appeal Protects Mediation Briefs from Discovery in Malpractice Suit.

In a 32 page opinion, the California Court of Appeal on Monday ruled that a former client suing for malpractice could not obtain copies of the mediation briefs and e-mails quoting from the mediation briefs submitted in connection with a mediation. Plaintiff Corey Kausch (Kausch) filed a malpractice action case against his attorney William Wimsatt and his firm, Magaña, Cathcart & McCarthy alleging that the defendants breached their fiduciary duty by submitting an unauthorized settlement demand during mediation of his underlying personal injury suit. Kausch apparently learned of this allegedly unauthorized demand when reading the “confidential mediation brief” submitted to the mediator. Kausch claimed that the defendant lawfirm reduced his original settlement demand from $3.5 million to $1.5 million without his authorization. After the matter settled at a second mediation session, Kausch sued his attorneys.

During discovery, the defendant lawfirm filed for a protective order in the malpractice action, seeking an order prohibiting disclosure of “mediation-related” communications, including all mediation briefs and e-mails that quoted from a mediation brief, and a communication made by Wimsatt to the personal injury lawsuit defendants purportedly lowering Kausch’s settlement demand. California Evidence Code Section 1115 et seq. protects from disclosure any written or oral communication made “for the purpose of, in the course of, or pursuant to, a mediation or a mediation consultation,” as well as all “communications, negotiations, or settlement discussions by and between participants in the course of a mediation or a mediation consultation.” After two hearings, the trial court refused to grant the defendant lawfirm’s motion for protective order on the grounds that the California Supreme Court had held that the confidentiality statute did not protect “perjury or inconsistent statements.”

The Court of Appeal reversed the trial court in respect of the briefs, holding that “mediation briefs are designed to facilitate an open and frank dialogue with the hope that the case can be resolved in the mediation. When written, the authors expect the briefs will always be kept confidential and used only in mediation by the mediator and the parties. Thus, mediation briefs are an integral part of the mediation process and are “prepared for the purpose of, in the course of, or pursuant to, a mediation or a mediation consultation,” and are to remain confidential.” The emails were likewise protected, as the “e-mails would not have existed had the mediation briefs not been written.”

The Court of Appeal refused, however, to protect an apparently off-hand comment that one of the defendant lawyers made to the personal injury defendants during a phone conversation unrelated to settlement or mediation, that ““[he] had reevaluated the damages; and . . . a demand for half of plaintiff’s original demand was more in order.” The Court found that the defendant lawfirm failed to meet its burden to show that this conversation was “anything other than a routine discussion, unassociated with mediation, that routinely occurs in civil litigation.”

The case is Wimsatt v. Superior Court, Case No. B196903.

Madison County Enacts Mandatory Mediation Rules for Med Malp Cases

It looks like the judges of one of the nation’s most reviled “Judicial Hell Holes”, Madison County, Illinois, have adopted new local rules requiring the parties in all medical malpractice cases to mediate their cases. According to the Madison County Record, the “judges adopted the rules June 18, [2007] based on recommendations of the circuit’s Medical-Legal Committee.” They released the following statement: “In order to alleviate the burden to the parties of protracted litigation in medical malpractice actions, to further the administration of justice, and to prevent unnecessary delay, the court hereby implements” new local rules. The parties are now required to mediate all “healing arts malpractice actions” within 90 days of the depositions of all Plaintiffs and Defendants. Further, all medical malpractice cases will be reviewed by a panel of circuit judges which will meet on a monthly basis to ensure that the cases are being prosecuted in a timely manner.

Madison County, Illinois has long been considered by all but the most stalwart plaintiff’s lawyers as one of the worst jurisdictions in the entire U.S. in which to be sued. Since taking over as Chief Circuit Court Judge in May 2006, Judge Ann Callis has instituted rules to make it harder for out-of-state lawyers to file cases in Madison County and for plaintiffs to change judges readily in an attempt to remedy the poor image of the jurisdiction. This appears to be another step in the right direction, for both judicial reform and for mediation and ADR, in general.

Welcome to my blog.

Hello and welcome to the CKA Mediation and Arbitration Services blog. My name is a Christopher Annunziata and I am a civil mediator and attorney in Atlanta, Georgia. After more than a decade representing businesses and individuals in various civil litigation matters, I realized that my most satisfying results came when I could convince the opposing party (and sometimes my own clients) of the benefits of reaching a compromise solution. Because this is a big no-no in the corporate law-firm world (you can’t bill the file if you settle it!), I decided that I would use my experience assessing litigation risks, analyzing probable outcomes and recommending creative solutions and become a civil mediator.

I plan to use this blog to post about my practice and also to discuss recent developments in the field of Alternative Dispute Resolution, mediation, arbitration and Georgia law. I expect that many of the visitors to my website will be attorneys, but I will attempt to write about these topics in a way that will inform and entertain the non-lawyer, as well.

If you are interested in learning more about me and my practice, I invite you to visit my website at www.ckamediation.com.