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Resolving profit participation disputes presents unique challenges
By Hon. Diane Wayne (Ret.) and Joel M. Grossman
Profit participation disputes are a world unto themselves, combining classic contract issues with special issues related to motion picture and television industry practice. Rather than end up in high-stakes, "winner take all" trials or arbitrations, mediating these disputes makes sense and can be far more effective. Following are suggestions to help resolve these often thorny disputes. Don't just be an advocate, be a problem solver. Click here to read complete article. PDF
Reprinted from the Los Angeles Daily Journal, June 21, 2012

Pearson Dental Supplies, Inc.: An Exception That Will Swallow the Rule?

In Pearson Dental Supplies, Inc. v. Superior Court, the California Supreme Court ruled that when a “clear error of law” by an arbitrator deprives an employee subject to mandatory arbitration of disputes of a hearing on the merits of an “un- waivable statutory employment claim,” the award may be vacated by a trial court. It set forth this ruling notwithstanding the general rule, established in Moncharsh v. Heily & Blase, that a court may not vacate an arbitration award when the award is premised on errors of law. In his dissent, Justice Baxter argued that the majority has in effect created an exception to the Moncharsh rule which would “swallow the rule of limited judicial review.” This article examines the circumstances and holding of Pearson in order to determine whether it creates a limited and logically justified exception to the general rule prohibiting vacation of an arbitration award due to error, or whether, as Justice Baxter states, it creates an exception that swallows the rule.
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Reprinted from the California Labor and Employment Law Review. September, 2010

When a Settlement Is Not Really a Settlement: Kullar v. Foot Locker Retail, Inc.

When is a settlement not a settlement? In the world of wage-and-hour class actions, a settlement is not a settlement when the trial judge declines to approve it. When is a settlement approved by the trial judge not a settlement? According to the recent case of Kullar v. Foot Locker Retail, a court-approved settlement is not a settlement if objectors can persuade the court of appeal that the trial judge failed to ensure that the settlement was appropriate.The case presents challenges to trial judges, lawyers, and mediators as they work together to settle the avalanche of wage-and-hour class actions that are being filed at a dizzying pace. Indeed, the case may well change the manner in which wage-and-hour class actions are litigated and mediated in the future.
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Reprinted from the California Labor and Employment Law Review. March 2009

Employment Mediation Cases Offer Unique Challenges to Resolution
Although mediating employment cases is in some ways no different from mediating other civil disputes, they often present unique challenges for the parties and the mediator. Understanding the nature of these challenges can go a long way toward a successful resolution.
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Reprinted with permission from the The Daily Journal Corporation. .

What Every Lawyer Should Know about Mediation

What is Mediation?
Mediation is an informal process of dispute resolution in which a neutral mediator assists two or more parties in settling a dispute. In many, but not all, cases the parties are in litigation and seek the help of an unbiased third party in settling the case. In other cases the dispute has not yet led to a formal lawsuit and is settled before a lot of attorney fees have been incurred. Mediations can last for several hours or even several days, but it is common for a mediation to last for one day. Most of the mediation consists of the mediator going back and forth between the parties until all sides agree upon a settlement.
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Reprinted with permission from the Los Angeles County Bar Association.

Nobody Can Leave Without Signed, Binding Agreement

It is close to midnight. The mediation has lasted 15 hours. The mediator, the lawyers and their clients are exhausted - but with a final burst of energy and compromise, the case is settled. As the parties run for the elevator, the mediator throws his body against the door to block all exits.        

"Nobody leaves without a signed settlement agreement," he bellows. The parties reluctantly return to the conference room. Someone pulls out a legal pad and pen, and the parties manage to agree on the key deal points. The parties sign it and leave.
Happy ending? Maybe.  

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Reprinted with permission from the Daily Journal Corporation.

Tinseltown Disputes Present Some Unique Challenges

While every mediation has its own twists and turns, entertainment disputes present the parties, the lawyers and the mediator with special and unique challenges. Those challenges sometimes have to do with the identity of the parties - such as actors or other celebrities-and sometimes with especially tricky confidentiality issues.              

Additionally, while the disputes are governed by law, they also are often subject to "industry practice" (whatever that means). Thus, resolving entertainment disputes often calls for special expertise on the part of the lawyers and the mediator.

Celebrities are not by nature any more litigious than us ordinary folks. But many celebrities are surrounded by a host of professional advisers, including accountants, agents, business managers, personal managers and, of course, lawyers. All of these need to prove themselves useful contributors to the celebrity's life and wealth, and in this capacity often review - and question - contracts, financial statements, profit-participation statements and other legal documents on behalf of the celebrity.  
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Reprinted with permission from the Daily Journal Corporation.

Mediation Clients Require Very Realistic Preparation

When lawyers ask for my advice on how to prepare for a mediation, I always tell them the same thing: prepare the client.

n case after case, I have found that cases have the highest chance of settling when the clients know how the process works, are willing to be flexible and open to new ways of looking at the case, and understand the role of the mediator. Especially with clients who have not mediated before, counsel must spend a lot of time stressing the dynamic nature of mediation and the need for both flexibility and patience.         

The first thing a client needs to understand is that, unlike a court hearing, in which the lawyer does all the talking, at a mediation the client will be participating actively. The mediator will be asking the client questions and engaging in active dialogue with the client. From time to time, the mediator may play "devil's advocate," challenging some of the client's assumptions about the case.        
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Reprinted with permission from the Daily Journal Corporation.

How to Get the Best Results in Mediation

In my experience as both an advocate and a mediator, there are three keys to mediation success: they are flexibility, creativity, and, by far the most important, patience. I encourage all parties to keep these three points in mind while preparing for, and especially while participating in a mediation. Here are some things to think about in preparing for your next mediation.
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Clarifying the Confidentiality of Mediation Evidence

Mediation, virtually nonex istent only 25 years ago, has become an accepted part of the legal process. Courts regularly send cases to mandatory mediation, and disputing parties routinely agree to voluntary mediation. Compared to litigation, mediation offers many benefits to parties, the most important of which is the ability to control their own destiny.
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Reprinted with permission from Los Angeles Lawyer, April 2004

How to keep In-House Counsel Happy: Corporate clients depend on outside counsel for professional courtesy.

After spending 15 years as the head of Sony Pictures' in-house litigation and labor relations groups, I have seen it all when it comes to how outside counsel relate to their in-house counterparts. Pleasing in-house counsel requires more than just being a good lawyer; you also need to pay close attention to the client's needs beyond the use of your legal skills. The following advice, drawn from my experiences, indicates some of the ways to ensure a smooth relationship with in-house counsel.
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Reprinted with permission from Los Angeles Lawyer, February 2004

Lawyer Wraps Sony Career, Cuts to ADR

And cut! That's a take!
Joel M. Grossman has wrapped up 14 years of running Sony Pictures Entertainment's litigation and labor relations departments. But he's planning to become a star in his new career as a private neutral.
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Reprinted with permission from the Daily Journal Corporation

Photograph of Joel M. Grossman

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