Mediation Experience
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Representative Issues in Mediation
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Core Mediator Philosophy / Outlook
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Rates
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Mediation Experience

Rebecca has been a mediator for over 25 years and has mediated over 1,000 matters involving a broad array of business disputes.

Rebecca was on the original mediation panel created by the U.S. Bankruptcy Court / Central District of California in 1995, and served on that panel until 2012. She was also on the original mediation panel created by the U.S. District Court/ Central District of California in about 2002, and served on that panel until 2015. As part of her court service, Rebecca mediated over 300 cases. For the bankruptcy court, most cases fell into one of two categories:

  • nondischargeability claims where the creditor was accusing the debtor of fraud or defalcation as a fiduciary, and

  • preference avoidance claims where a bankruptcy trustee was seeking to recover property or money transferred to a third-party in advance of the bankruptcy filing. For the district court, most cases fell into one of two categories:
  • loan default/ wrongful foreclosure, and
  • commercial business disputes.

In 2005, Rebecca added neutral services to her law practice offerings. The following are two examples of interesting cases that illustrate some of the benefits of giving parties the opportunity to explore a negotiated resolution before they commit to the litigation outcome.

Cases

Example 1 – Ownership of Class Action Recovery

The dispute arose out of an assignment for benefit of creditors proceeding in which the assets of the assigning entity (Old Co) were sold to New Co. Because of the wording of the assignment, it was unclear whether the assets transferred to New Co included a class action recovery. The amount of the potential payout was unknown because the pool of competing class action claimants was unknown. Pre-mediation, the parties were stuck on whether Old Co or New Co owned the class action payout. Through mediation, the parties figured out a way to tranche the potential recovery – e.g., the first $1 million, the second $2 million, the third $2.5 million dollars, etc. – and to agree to share any recovery in varying percentages. The trustee of Old Co wanted a bigger percentage of the early payouts to pay creditors and close the estate. New Co was willing to agree if it received a bigger percentage of the later payouts because it believed the potential payout was going to be significantly more than Old Co’s trustee.

Example 2 – Franchisor/ Franchisee Dispute

The plaintiff was an original franchisee and over the years had built a very successful business. Ownership and management of the franchisor changed during the second term of plaintiff’s franchise, which led to changes to the system that resulted in less support for franchisees. Litigation resulted. Plaintiff had two problems:

  • Despite the franchisor’s changes and new direction, plaintiff’s business continued to grow and produce greater profits. It thus would not be able to show lost profits as a result of the franchisor’s actions.
  • Plaintiff was located in a jurisdiction that was NOT hostile to the enforcement of non-compete agreements. which meant that if it left the franchise system but continued with the business, the business would be exposed to an unfair competition claim, as well as a potential injunction by the franchisor re the continued use of customer information. After exploring the impact of the uncertainty created by these potential realities, plaintiff was able to pivot in mediation and engage in a negotiation whereby plaintiff could exit the system and continue in business free of all restrictive covenants on buyout terms agreeable to both parties. This satisfied the plaintiff’s “legacy” plans to pass the business onto the owner’s sons, and it satisfied the franchisor’s desire to go in a new direction without the negative publicity and expense the dispute would invite.

Representative Issues in Mediation

defined by contract; imposed or implied by law; undertaken by status as an attorney, broker, officer, director, partner, managing member, employer, employee, agent or representative.
accounting for money; tracing the use or disposition of funds or other assets; assessing the monetary value of property, goods, services or other benefits bestowed or received; assessing the monetary value for loss of or damage to tangible or intangible property/property rights; understanding the current or historical financial condition of a business or business venture.
negligent acts and omissions; tortious conduct in the form of fraud, trespass, misappropriation, defalcation, infringement, conversion, transfer and concealment of assets; unfair business conduct in terms of not performing as agreed or engaging in conduct aimed at obtaining an unearned advantage or unjust enrichment.
assessing the value to be ascribed to real or personal property, goods, services or other benefits received or bestowed; assessing the value of a partial ownership interest in property, a business, a trust or other assets.
assessing the effect of competing claims.

Core Mediator Philosophy / Outlook

Rebecca loves mediation because it is efficient, economic and effective! Of the dispute resolution processes available to disputing parties, mediation is by far the most efficient and economical. It may provide the best outcome in the context of civil business disputes when the downside risks, cost of the litigation / arbitration alternative, and lost opportunity costs associated with delayed outcomes are factored in.

APPROACH

  • Learn as much about the dispute before the mediation begins by reading the underlying pleadings and material documents that the parties may refer to during the mediation.
  • Confer privately with the parties’ counsel in advance of the mediation regarding the background of the dispute, what they / their client(s) would like to achieve at the mediation, and whether there is any “private” or “confidential” information I should be aware of before the mediation begins.
  • Walk into the mediation with an action plan on how to get the parties started with constructive dialogue about the dispute and what needs to be considered when crafting a negotiated resolution.
  • Walk into the mediation with an action plan on how to help the parties start the negotiation.
  • Walk into the mediation with an understanding of when / where / how impasse might occur and have an action plan for helping the parties work through that event so as to keep the negotiation rolling forward.

PERSPECTIVE

I am friend to all and foe of no one. I am there to help the parties and their counsel in an even-handed way to

  • discuss the dispute
  • explore their negotiated outcome options, and
  • engage in a settlement negotiation. I am there to promote and coach a negotiated outcome. I am there to build settlement and avoid or work through impasse.

STYLE

At the outset, I start facilitative and give the parties and their counsel a wide berth with regard to how to discuss the dispute, the litigation/arbitration alternative, and what thoughts the parties and counsel have about how the dispute might be settled. It is, after all, the parties’ dispute and thus their resolution.

During the course of the mediation, I work with the parties to exchange information and to give reasons for their respective proposals. This is one of the most meaningful aspects of mediation – i.e., that parties are called upon to share information that might otherwise cost tens of thousands of dollars and months of discovery to exchange in the context of the litigated / arbitrated dispute. From my perspective, this is one of the reasons why mediation is so cost effective and successful in achieving negotiated outcome results.

In private, once proposals are being exchanged between the parties, I work with the parties and their counsel to evaluate the litigation / arbitration alternative as compared to the settlement proposals or opportunities that are in the offing.

MEDIATOR GOAL

My goal as mediator is to end with a negotiated resolution or – short of that – an agreed upon framework for settlement within which the parties and counsel can continue to pursue after the mediation session ends, which does not need to spell the end of the parties’ efforts to achieve a negotiated resolution.

The litigated business dispute is one where the payment of money or division of property usually plays a role in the negotiation. These types of negotiations tend to be “aggressive” because each side is there to claim as much as they can and give up as little as they have to in order to achieve a negotiated resolution. As such, these types of negotiations take time, and several moves and counter-moves. My goal in these types of negotiations is to help both/all sides stay engaged in the negotiation and to find value in achieving a settlement. Sometimes, this means continuing to work post-mediation.

Rates

Full Day

$7,000per day
  • ( up to 9 hours of session time / includes study and pre-mediation conference time with the parties’ counsel)

Half-Day Session

$4,000half-day session
  • (up to 5 hours / includes study and pre-mediation conference time with the parties’ counsel)

Extended Session Time

$700per hour
  • for extended session time

Globally available – no charge for travel time / travel costs billed at business rate as incurred

Able to host by video conference.

2024 Case Summaries download