Mediation, Arbitration, Early Neutral Evaluation & More
For private parties, the court system is seen by many as presenting a less than desirable method for resolution of most legal disputes. And as time progresses, our conventional approach to the use of the legal system is undergoing a wholesale makeover where the best methods of obtaining efficient and lasting resolution of disputes are now routinely accomplished in the context of mediation, arbitration, or a combination of the two.
This phenomenon demonstrates that we are moving towards a more intelligent and predictable system of justice – and one that is no longer endlessly shackled to the archaic procedures of civil litigation, often dictated by rules that differ from county to county, with a minefield of state and local deadlines and time traps, opportunity for gamesmanship in the discovery and pretrial motion phases, disruption and delay of scheduling, and, often important decisions are left to fact-finders who may not have sufficient familiarity with the subject matter of the issues at hand, leading to lack of trust and confidence in the process. Of course, there are some cases that are best presented to a jury for decision, but rare is the commercial case that will not be better served and less costly for both sides, by submission to some form of ADR.
Most litigators now approach their cases with a view toward early resolution after perhaps setting the matter up with a traditional civil lawsuit, initiating some discovery requests to the opposing party, and perhaps testing the merits of the case with a few procedural challenges. Counsel then look to obtain the actual final resolution for their clients by mediation or arbitration. That’s where Jim Simon comes in.
Jim Simon has practiced law in the Lake Tahoe region since 1976 when he and Jim Porter formed Porter Simon with its central office in Truckee, California. He has more than 30 years of experience in mediation and arbitration and has dedicated many years to serving the legal needs of the greater Northern California community. Jim has tried cases for plaintiffs and defendants in arbitration and in state and federal courts in the areas of real estate, insurance, business, estate disputes, personal injury, and wrongful death claims, mechanics lien foreclosure matters, lease disputes, construction cases, HOA matters, and professional negligence claims.
Jim has also developed somewhat of a niche practice in complex accounting fraud cases involving the financial examination and dissolution of Partnerships, LLC’s, and Corporations in a variety of business enterprises, including real estate joint ventures, law firms, insurance brokerages, farming and ranching operations, landfill operations, and various types of franchise businesses.
Although trained and educated in the conventional ‘techniques’ of mediation, Jim Simon engages each new assignment as an opportunity to quickly discover the best approach that might be used to facilitate a deal between those particular parties, then adapts his skillset during the process, identifying the material elements of a settlement. Except in unusual or very complex multiparty matters, Jim keeps the process moving relatively swiftly, without long absences from anyone’s caucus room. Parties and counsel are heard. Positions are discussed. Settlement emerges. Disputes resolved. His preference is to bring the parties within what he determines from his private caucus sessions with each side, is the “zone of potential settlement.” After that comes the close and whatever documentation is needed to make it stick. Jim manages his mediation services in accordance with the Model Standards of Conduct for Mediators and pertinent provisions of law regarding the mediation in the jurisdiction covering the parties’ dispute. All disclosures required by law and good ethical practice are made, and transparency of all relationships is valued.
Handled properly and with the degree of detail and adherence to procedural requirements necessary to withstand appeal, arbitration can resolve a disputed matter when the parties want a reasoned decision on the merits, faster and with more understanding and certainty than other ADR methods or a contested court trial. Many neutrals shy away from conducting arbitrations because the process requires a thorough understanding of the rules of engagement and more importantly, how to craft a bulletproof award, which can often be a challenge. Jim is experienced in both and will issue a timely, informative, and reasoned award ready for conversion to a superior court judgment, if necessary, under the rules by which the parties choose to conduct the arbitration. If the parties’ relationship did not contemplate specific arbitration rules, Jim assists in identifying a neutral set of rules for the parties’ use.
In certain cases, Jim is a proponent of the process known as “med-arb,” where a special agreement is reached allowing the parties to combine the best methods of both mediation and arbitration.
Early Neutral Arbitration
In certain cases, Jim has been engaged as a consultant to review a proposed or ongoing action and render his analysis and opinion on the strengths and weaknesses or a particular cause of action, legal theory, or theme of a case, subject to trial or arbitration. He has served as a mock trial judge for trial consulting firms and can offer his input and assist counsel in planning for ways to save time and money during the discovery and final trial preparation phases of cases heading to court or arbitration.
In addition to mediation, arbitration, and early neutral evaluation, Jim is available for specialized services such as discovery referee; Code of Civil Procedure section 638 upon request.
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