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Litigation & Arbitration

Nov. 8, 2017

Hon. Ken Kawaichi (Ret.)


Bay Area

Banking, Bankruptcy, Business/Commercial, Class Action/Mass Tort, Employment, Personal Injury, Real Property

Hon. Ken M. Kawaichi (Ret.) is a 28-year veteran of Alameda County's municipal and superior courts, and has developed a reputation for encouraging settlement discussions throughout the pre-trial and trial process. He has experience in a wide variety of hearing formats and case types, ranging from bankruptcy to employment and construction disputes. He is sought after and highly regarded for his efficiency, empathy, and respect of all clients.

For almost three decades, Judge Kawaichi has had the experience of handling all types of civil cases, including national and international commercial disputes and over fifteen years of experience managing mass tort litigation, including hundreds of multi-party civil cases. He is trained in, used, and taught various dispute resolution techniques, including mandatory and voluntary court settlement conferences, grouped or consolidated case settlement conferences, early disposition programs, supervised negotiations, court trials and arbitrations, mediation, summary trials, mass action settlements, class action settlements, phased settlement conferences, and others.

While on the bench, Judge Kawaichi was recognized for his excellence with the Alameda-Contra Costa Trial Lawyers Association as Judge of the Year and the Benjamin Aranda III Access to Justice Award. Judge Kawaichi plays an active role in the community by being a member of the Task Force on Complex litigation, Task Force on Race and Ethics Bias, University of California Berkeley Community Advisory Board, the Access and Fairness Chair, the Chair of CJER Fairness Planning, and the founder of the Asian Law Caucus.

Q&A with Hon. Ken Kawaichi (Ret.)

Q: Do you come to the arbitration prepared to split the baby or fairly call balls and strikes?
-- Patricia Glaser, Glaser Weil Fink Howard Avchen & Shapiro LLP

A: If the legitimate purpose of an arbitration was to "split the baby" in half, Neutrals would be unnecessary. One could just ask each side to state an opening position, add them and divide by two. Arbitrations should be an opportunity for the parties to have an unbiased neutral find facts, apply the law and determine the appropriate award without regard to any middle point.

Q: It appears arbitrators are less inclined than judges to grant dispositive motions (e.g., motion to dismiss or motion for summary judgment). Is that your experience? If so, why?
-- John Hueston, Hueston Hennigan LLP

A: Both as a judge and as an arbitrator, I have granted dispositive motions in the nature of Summary Judgements or Summary Adjudications. While the basic tendency may be to preserve a "day in court" for the litigants, in either court or ADR, if there is no material issue of fact (and not likely to be one) and the appropriate law is applied, a dispositive motion must be granted. To be clear, dispositive motions are not frequently granted. Buts where it is the case that cannot be proved, then fairness to other litigants mandates the granting of such motions.

Q: How can you decide arbitrations without being influenced by the identity of the parties and their lawyers, i.e., if one is a repeating source of business, or an opinion leader among lawyers?
-- John Keker, Keker Van Nest & Peters

A: The identity of the parties or their counsel never should influence arbitration decisions or mediations. If the neutral has opinions or feelings about the parties or counsel, the neutral should recuse herself/himself if appropriate or if the opinions or feelings are felt not to influence the outcome, at least disclose the facts to all sides.


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