At a seminar hosted by Gary Weiner, former Mediation Program Administrator at the California Court of Appeal, First Appellate District, for the Court’s Mediation Panel, we had lively discussion about Provost v Regents, (2011) 201 Cal.App.4th 1289.
I would like to focus on only one aspect raised by this case. That is the ability of attorneys to participate in mediations on behalf of and in place of their clients. In Provost, an attorney appeared for the Regents at the mediation and signed the term sheet for the Regents at the end of the mediation. The ability for the attorney to bind the Regents to a settlement was raised upon appeal.
The court found that the attorney was an employee of the Regents’ General Council office and was assigned to the case by the Regents’ General Council and vice president of Legal Affairs. Also, the Regents’ ‘by-law 21’ makes the General Council an officer. The attorney was also ‘fully familiar with the case and understood the seriousness and finality of settling’ within the Regents’ guidelines. To top it off, the Court concluded that since the Regents’ did approve the settlement at a later date, they had given the attorney full authority to settle.
It is very important to ensure that any attorney appearing at mediation for and in place of their client, have real authority to settle the dispute. As a mediator, I make sure that there is adequate evidence that the attorney has authority to settle the dispute up to the demand of the other side.
I learned this lesson the hard way early in my mediation practice. An attorney appeared without her client and claimed fully authority to settle the case. It turned out that the authority she had was to accept a dismissal with prejudice of the entire case and the ability to issue a promise not to sue for malicious prosecution.
About the Author: Ken Strongman (www.kpstrongman.com) has years of experience and a growing national reputation as a mediator and arbitrator. He has successfully resolved more than a thousand disputes in the fields of construction defects, real estate, intellectual property, and employment. He is also a Mediator and Arbitrator for FINRA.
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