David Samani Joins BHBA Podcast On Mediation Best Practices

Los Angeles Partner David Samani recently joined a Beverly Hills Bar Association (BHBA) podcast titled, “Mediation 360: Preparation from the Defense, Plaintiff, and Mediator Perspectives,” during which he shared his insights on various aspects of the mediation process. Mr. Samani, along with a plaintiff’s attorney and a mediator, presented their thoughts on topics including how to determine whether a case is appropriate for mediation, preparing to mediate a case, communicating with clients, and handling the mediation itself.

Mr. Samani explained that early communication with clients is critical so that attorneys may learn what a client’s objectives are and develop an assessment of the case. He described that “from an early stage,” attorneys should determine the cost of litigation and ensure that the client understands “what an aggressive defense might entail.” As the matter progresses, attorneys and clients should “continue the dialogue” regarding costs as well as the strengths and weaknesses of the case, “making sure the client is apprised of the various alternatives that exist.” In addition, Mr. Samani discussed factors to consider when choosing a mediator, noting, “All mediators have their own styles and backgrounds.” He explained that some cases may call for a mediator with specialized knowledge in a particular area such as bankruptcy or securities, while other mediations may benefit from a mediator who understands the realities of private practice.

With respect to preparing for a mediation, Mr. Samani described, “Preparation in this context takes on a number of meanings. The lawyer obviously needs to be prepared . . . but really having a successful mediation will require that the clients be prepared as well.” He further explained that “clients and key decision-makers” should understand the risks, strengths, weaknesses, and reasonable settlement value range of the case, as well as the settlement process itself. Mr. Samani also emphasized the importance of anticipating “hurdles” that could arise during a mediation (e.g., complying with a consent clause in an insurance policy) and addressing them ahead of the mediation.

In addition, Mr. Samani, who recommends exchanging mediation briefs with opposing counsel prior to a mediation, noted that although mediation provides an opportunity to reach a settlement, it also serves as “an educational process both for the lawyer and for the client.” He noted, “Always for a defense lawyer, mediation can really be a valuable tool in issue-spotting or getting a new perspective on aspects of the case you may not have appreciated to that point.” Furthermore, Mr. Samani advised that attorneys should explicitly communicate a party’s monetary and non-monetary (e.g., confidentiality, non-disparagement) terms to a mediator at the outset of the mediation. He also suggested executing an agreement at the mediation if a settlement is reached. Mr. Samani shared that where possible, he brings a proposed long-form settlement agreement to the mediation in hopes that the parties can “use the mediator to hash out any disputes and come away with a signed settlement agreement.”

Mr. Samani serves as chair of Lewis Brisbois’ Legal Malpractice Defense practice. He has extensive experience defending attorneys against claims of legal malpractice, malicious prosecution, and other third-party claims. Mr. Samani is a co-author of the California Legal Malpractice and Malicious Prosecution Liability Handbook, a publication providing an overview of the issues and law governing legal malpractice and malicious prosecution litigation in California. In addition, he has defended a variety of professionals, including insurance and real estate brokers, engineers, accountants, and construction management companies against a range of civil claims.

Listen to the full BHBA podcast here.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.