Mediation is the second most widely recognized “ADR” process. Mediation, like settlement, is a formalized and labeled means of resolving disputes which remains throughout in the total control of the parties. Mediation, in its formal sense, is a process, facilitated by a professional labeled as a “mediator,” by which the parties themselves come together and agree. There is no verdict, decision, ruling or award by any third party. There is nothing to which to object, or from which to appeal.

Where Mediation Can Work

The success of mediation depends upon only three things:

  1. The willingness and preparedness of the parties to reach agreement;
  2. The participation of all parties necessary in order to reach a complete resolution of the issue or issues in dispute; and
  3. The ability of the mediator to bring the parties to the point of agreement.

Mediation is recommended when the parties and the situation are such that all three success requirements, as listed above, are present. With respect to preparedness, it is generally recommended that the parties mediate with the assistance of counsel, and that they participate in mediation with full knowledge of the facts involved and the law that would otherwise govern their particular dispute.

After and with the representation of counsel, mediation is a highly successful dispute resolution alternative in virtually all areas of the law, including securities, real estate, family law and employment.

Mediation Experience

Virginia Gaburo has represented numerous parties in mediation proceedings, has served and presently serves as a Mediator for the San Diego Superior Court, has extensive mediator training, and has many years of successful mediation experience.

A “settlement” refers to any agreement between the parties as to a particular aspect or the entirety of a dispute. A “settlement” is what is reached in mediation. A “settlement” is what is agreed to by the parties after having filed an arbitration or a lawsuit, and which takes the matter away from the arbitration forum or the court for final resolution. It is merely an agreement and accord reached between the parties, which disposes of and eliminates a particular area or all areas of dispute.

Our Approach To Settlement

This topic is included on our website in order to address certain misunderstandings that may be held by potential clients, and to set forth certain perspectives and practices of this firm.

In the majority of cases selected for representation by our firm, we will recommend making an initial attempt to reach a settlement with the opposing party be made. This may take the form of a settlement demand letter to the opposing party or its legal representative, or may be done by means of a telephone call.

We do not file a lawsuit or a claim for arbitration if our client merely wants to encourage or facilitate a settlement. We litigate or arbitrate only those claims which we believe have a high probability of success, and which we and our clients are prepared to follow through to conclusion.

We do not draft or prepare settlement demand letters for cases which we do not believe are meritorious, or for cases we have not accepted for representation by the firm. We do not file claims in order to settle them; we file claims if and because we have not been able to settle them.

It is our experience that settlements are made, before or at any stage during a pending lawsuit or arbitration, when two things occur: when both of the parties are motivated – by whatever facts and circumstances are present in their own lives – to settle; and when both parties have obtained sufficient knowledge and understanding of the case in order to competently estimate its likely result. It is our experience that settlements occur more frequently and earlier in a case the more ethical, experienced and competent are the party and its legal representative on the other side.

In recent years lawyers have begun using the term “ADR,” which refers to so-called “alternative dispute resolution” procedures and forums, and which means generally “alternatives” to litigation. High on the list of such alternatives to litigation is the process known as “arbitration.”

About Arbitration

Arbitration takes many diverse forms, and can vary widely from one forum and one context to another. In many cases, its actual procedures can be governed by contract or agreement between the parties, entered into before or after a dispute has arisen between them. It is generally designed and is expected to limit the amount of pre-hearing “discovery,” or factual and legal investigation by the parties; and to be less expensive and less time-consuming than litigation.

The Process

The “trier of fact” or decision-maker in an arbitration proceeding is a single appointed arbitrator or an arbitration panel. The parties present their cases at an “arbitration hearing.” Neither the federal nor State of California rules of evidence apply. The arbitrators can but are not required to be lawyers; and under California state law they are not required to know or to follow the law. They are required to be free from bias and prejudice, and to render a fair, impartial and equitable result, based on all of the evidence presented at the hearing. The grounds and bases for appeal of an unfavorable result are extremely limited, and in the vast majority of cases, any attempt to appeal the arbitrators’ award would be futile and not recommended. The parties themselves pay the arbitrators for their time, and pay the arbitration forum for the use of hearing sites and facilities.

Arbitration In Securities

In the securities area, most cases involving a broker dealer/customer relationship are required to be arbitrated before the Financial Industry Regulatory Authority (FINRA), or some other mutually acceptable arbitration forum. This is so because virtually every brokerage firm requires that its customers sign an opening account agreement containing a binding arbitration clause as a condition to opening an account and doing business with the firm. While there are a variety of facts and circumstances that may make litigation more appropriate for a particular dispute, in most cases this arbitration clause will be enforced, and the parties will be required to resolve their dispute through arbitration.

Arbitration In Real Estate

Arbitration is widely, and very successfully, used in real estate cases. With certain exceptions, notably multi-party construction defect cases, for which a well-reasoned and well-implemented protocol has been developed in the San Diego courts, arbitration may be the most cost-effective and satisfactory means of resolving problems and disputes involving real estate issues.

Arbitration In Family Law

Arbitration is used less frequently in the family law/dissolution context. Nevertheless, it can provide an effective alternative means of resolving an entire case; or, more frequently, of resolving a discreet disputed issue or issues of property distribution. The parties to a dissolution proceeding are free to choose arbitration over litigation for any purpose they like.

Arbitration In Employment

Arbitration in the employment context, when it is alleged by an employer to be mandated by a previously executed employment contract or agreement with the employee, is currently limited in specific ways by California state law. Generally, the courts now require that the employee’s rights to discovery, to a finding of liability, and to damages, as provided under the State’s anti-discrimination statutes and laws, are not significantly abridged; that employees not be required to pay arbitrator and arbitration forum fees which they cannot afford; and that the arbitration closely resemble and provide many of the attributes and benefits of litigation in a court of law.

Experience In Arbitration

Virginia Gaburo has represented numerous parties in arbitration proceedings, has been an arbitrator for the San Diego Superior Court, the American Arbitration Association and Kaiser Permanente; and is currently an arbitrator for the Financial Industry Regulatory Authority (FINRA). She has extensive arbitration training, and many years of successful arbitration experience.

“Litigation” is a term typically used among lawyers to refer to the process of a lawsuit filed in state or federal court. Procedurally it is governed by statute, by local rules, and by specific judge-initiated courtroom policies and procedures. Substantively, and in its ultimate result, it is governed by the applicable law–statutes and/or judicial decisional law, sometimes called “case law.”

The Process

Litigation in all courts proceeds in a generally similar fashion. The process is begun when a complaint and an answer to the complaint are filed with the court. After this, the parties prepare their respective cases by engaging in “discovery” – they serve and respond to written questions and requests for the production of documents and things, take depositions, and serve subpoenas for documents on third parties. Ultimately, and if the parties cannot agree to settle their case, they proceed to trial before a judge or a jury. A verdict or decision is reached. That verdict or decision should follow the legal precedent applicable to the particular court or forum; and it can be appealed to a higher court for a variety of reasons.

Why Use Litigation?

Litigation has its defects and shortcomings. It is attracting an increasing number of critics, many of whom are adamant and vocal. It can be extremely expensive, highly adversarial and emotional; and it has the possibility of rendering both parties to a conflict actual losers at its end. Nevertheless, in many situations, litigation is the best, and sometimes the only, means of resolving a particular dispute. It is for the most part fair, and it is predictable – you know from the start what procedure and what law will apply. And today, in the California state courts at least, litigation is comparatively speedy. You can expect to go to trial in a year or slightly more, often faster than you could have had the opportunity to present your case to an arbitrator or arbitration panel.

In fact, access to the courts, and the opportunity to go to court when necessary, are rights and privileges we all should cherish; and should make and support every effort to preserve.

Litigation Experience

Virginia Gaburo is a litigator, a successful trial attorney, and has more than 20 years of civil litigation and trial experience.