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Litigation & Arbitration

Nov. 8, 2017

Louis M. Marlin, Esq.


Marlin louis online


Appellate, Business/Commercial, Class Action/Mass Tort, Construction, Employment, Insurance, Personal Injury/Tort, Pharmaceuticals

Louis M. Marlin, Esq. is a full-time neutral with JAMS who brings significant trial experience in his background as both plaintiff and defense counsel. He specializes in resolving a wide variety of disputes, and is adept at handling large, complex cases and disputes, including matters involving class action, mass tort, intra- and inter-corporate disputes, employment and personal injury issues.

Mr. Marlin works closely with litigants before the mediation begins, fostering early communication with all sides to determine the largest impediments to settlement. He is rigorous in his follow up and will continue to communicate with the parties if necessary long after the mediation session has ended.

As an arbitrator, Mr. Marlin ensures the process is convenient for the parties while also formal enough so that all sides feel they have had an opportunity to have their position fully presented and considered. He makes scheduling and related deadline decisions in a cooperative manner that assists in lessening the stress normally attached to litigated proceedings, and bases his decisions on a thorough understanding of the facts and application of the law.

A former litigator with more than four decades of experience, Mr. Marlin specialized in defense work before focusing on representing plaintiffs in employment disputes and class actions for the last 15 years of his law practice. He was considered among the top class action attorneys in California, and regularly applies that insight and experience to his practice as a neutral in connection with a wide variety of disputes.

Q&A with Louis Marlin, Esq.

Q: Do they recommend exchanging briefs with opposing counsel? Why?
-- Brian Kabateck, Kabateck Brown Kellner LLP

A: I strongly recommend exchanging briefs at least a week prior to the scheduled mediation whenever possible. In doing so, I urge the parties to exchange a "redacted" brief that does not contain either demands of offers, as providing those can generate anger that derails a mediation before it begins. However, the exchange of briefs setting forth both the factual and legal arguments of each side give the parties an opportunity to be prepared to respond to the other side at mediation. In addition, exchanging briefs often highlights areas of agreement, which can facilitate the mediation process, and helps focus the process on the non-monetary areas that need to be overcome to reach a mutually satisfactory result.

Q: When a mediator comes to a session only mildly prepared, it does not feel like the parties get their money's worth for the day. What do you do to prepare for a mediation to ensure it is effective, and what do you ask of both sides to help prepare.
-- Rick Richmond, Jenner& Block LLP

A: Prior to every mediation I conduct, I have a private telephone conference with each side. In an ideal situation, I will have received the brief from each side prior to the call and will have had an opportunity to thoroughly review it to determine if any "red flags" pop up that should be addressed prior to the actual mediation session. By example, if the briefs disclose a significant liability or damage impacting dispute, I may ask the parties to clear up this discrepancy during our phone call. However, in doing so, I am very careful not to disclose information provided by the other side unless I have received permission to do so. In addition, I often ask the parties to exchange a redacted version of the brief I have received with the other side. While I believe it can be counter-productive to exchange demands and offers prior to mediation, the exchange of arguments relating to liability and damages can aid the mediation process.

Q: When do they use a mediator's proposal?
-- Brian Kabateck, Kabateck Brown Kellner LLP

A: I think it is entirely counter-productive to present a mediator's proposal that the mediator knows will be rejected in order to use it as a negotiating tool to push one side or the other in a particular direction. Rather, it is a way of "closing the gap," and should be used carefully, but not necessarily sparingly. While I often use a mediator's proposal, the timing of its use is critical. I do my best to wait until two events occur: first, the parties have engaged in comprehensive discussions with me and I believe they have moved their initial positions to a point that is both reasonable and relatively close to the other side. Second, having done my best to prohibit the parties from making "last and final" demands or offers, I attempt to craft a mediator's proposal that I believe will be accepted by both sides.


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