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Neutral Yaroslav Sochynsky
likens mediation briefing to 'sheet music'
The Daily Journal – August 8, 2014

Arbitration and mediation resemble different forms of music, according to Yaroslav "Yarko" Sochynsky, a veteran neutral who practices both varieties of dispute resolution and plays jazz piano on the side.

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The $7 Billion Call
Oregon Quarterly: The Magazine of the University of Oregon – Winter 2008

Unraveling the insurance claims after the attacks on the World Trade Center in New York was the Super Bowl of mediation for Randy Wulff.

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The Velvet Hammer: Mediator tries to settle Morgan Hill courthouse flap
Mercury News – November 29, 2008

The man in the white collar sounds like a minister joining a couple in holy matrimony: "If someone knows of a reason why we shouldn't be here, please speak up or hold your peace.''

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Global Mediator Can
Navigate Around Big Egos
The Daily Journal – VERDICTS September 14, 2007

An accomplished jazz pianist, Yaroslav Sochynsky brings a variation of his subtle skills as a musician into play in his work as a mediator and arbitrator.

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Oakland Neutral a Favorite
in Handling 9/11 Claims

The Recorder – COURT WATCH October 25, 2005

It used to be that Oakland neutral Randall Wulff wouldn't accept a case outside of his own time zone.  But some assignments are too good to pass up.

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Wulff Chosen to Head 9/11 Panel on WTC Loss

The Oakland Tribune – April 21, 2004

An East Bay attorney and mediator will play a pivotal role in determining the amount of loss resulting from the World Trade Center's destruction at the hands of terrorists Sept. 11, 2001. 

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Neutral Zone
Daily Journal Extra – November 25, 2002

Need that case settled now, as in yesterday?  Check out our inaugural list of the state's most sought after mediators.  These 20 gifted neutrals expertly resolve the most complicated disputes outside the courtroom and end up saving everybody a lot of money.

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Settlement Wizard
ADR Profile, Verdicts & Settlements March 3, 2000

Randall W. Wulff, A master mediator who has been involved in alternative dispute resolution since its infancy praises the process with the enthusiasm of a proud parent.


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Ready, Set, Mediate
California Law – BUSINESS July 29, 1996

ALTERNATIVE DISPUTE RESOLUTION: Failed mediations are generally the result of poor preparation. Spending sufficient time in advance lets both lawyer and client get the most out of the process. By William A. Quinby

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Neutral Yaroslav Sochynsky likens mediation briefing to 'sheet music'
The Daily Journal – August 8, 2014
By John Roemer
 

OAKLAND - Arbitration and mediation resemble different forms of music, according to Yaroslav "Yarko" Sochynsky, a veteran neutral who practices both varieties of dispute resolution and plays jazz piano on the side.

"Arbitration is a cerebral, analytical exercise," he said in an interview at his offices near Lake Merritt. "I'm tasked with making the right decision and explaining it to the parties in writing."

By contrast, "Mediation is intuitive and improvisational, like playing jazz piano by ear," he said.

Sochynsky, 68, said his jazz heroes include Dave Brubeck, Bill Evans, Erroll Garner and Oscar Peterson. "You want to come to the mediation process with an open mind," he added. "A brief is like the written sheet music. It identifies the law and the evidence. But to get to the heart of the dispute you need your interpersonal and improv skills. A focus on the human and psychological aspects help."

At one of his first mediations after leaving his litigation partnership after 27 years at the now-defunct Landels, Ripley & Diamond LLP, Sochynsky faced a dispute involving the takeover of a small home alarm system company by a much larger business. The woman who had started the smaller company burst into tears. "Mr. Mediator, I'll be damned if you'll take away the business I started with my daughter in her bedroom," the woman sobbed, in Sochynsky's retelling.

Sochynsky called for a private caucus and asked the woman how the business had come to be. "Emotional and intuitive terrain is an open field," he said. "Once I got to know the personalities involved, the matter settled."

Because he spends about half his time doing arbitrations, Sochynsky said, he has an advantage when mediations are on his schedule. "Ruling on arbitration outcomes lets me project with mediation parties how a case could end up if it goes to arbitration or to trial," he said.

A lawyer who often calls Sochynsky, Aaron P. Minnis of Minnis & Smallets LLP, echoed that claim. "He's able to explain things to parties when they don't see the potentialities down the road," Minnis said. "He's an excellent listener, very patient with parties."

Minnis said Sochynsky is especially valuable in executive-level partnership disputes. "When there's a high degree of emotion, as is often the cases with these situations, Yarko has helped reach resolutions each time," he said.

Again, Sochynsky spoke of his work in musical terms. "When I play, when I improvise, I get into a zone where the process is flowing," he said. "In a mediation I hope to find a flow that leads to a turning point, when the parties are done with posturing, done with discussing the evidence and are ready to try to find a solution."

In one mediation Sochynsky and the lawyers were approaching an essential target date. "There were multiple parties and a lot of money at stake," he said. "We'd been having staggered meetings over the course of a month. One lawyer was being especially difficult, and another took me aside and explained he was upset because it was his birthday and his family was waiting at home with a party for him."

Sochynsky, as the midnight deadline neared, sent out for pizza and beer and asked that candles be put on the pie. "We all sang 'Happy Birthday,' the lawyer smiled and the case settled," he said. "That moment changed the atmosphere, almost the way the air smells after a thunderstorm."

James B. Betts of Fresno's Betts & Rubin said that Sochynsky settled a particularly intractable mediation "that I knew could not be settled. It was a shareholder derivative action that involved a lot of ugly, emotion-laden charges dealing with embezzlement. The parties had been entrenched in litigation for a year and a half, but Yarko worked with everyone into the night and was really good at getting to the bottom line.

"He has an intuitive insight into the personalities. He connects, with intellect and a dry wit. I'm a big fan."

Sochynsky, who charges $5,500 a day for mediations and $500 per hour for arbitrations, was born in Berlin of Ukrainian parents, with whom he moved to New York at age four shortly after World War II. The melting pot that was Brooklyn shaped his familiarity with various cultures, knowledge that aids his ease with diverse personalities.

In 2000, Sochynsky joined with Randall W. Wulff and William A. Quinby to form Wulff Quinby Sochynsky Dispute Resolution. On a recent morning he was in his office with the door closed, preparing for the day with a transcendental meditation session.

He said the practice helps with stress and serves to clear his mind for work. He hasn't tried meditation in a mediation, but he recalled one copyright case that came close. "It was over a quasi-religious work allegedly channeled by God to a woman on the West Side of Manhattan," he said. "Other parties were publishing portions of the text and claiming fair use. Both sides wanted to approach the mediation in a constructive spiritual manner, so they had us all hold hands and observe a moment of silence before we began."

Did it help? "The case settled pretty quickly," he said.

Here are some of the lawyers who have used Sochynsky's services: Frank A. Cialone, Shartsis Friese LLP, San Francisco; Paul J. Dion, Jones Bothwell Dion & Thompson LLP, San Francisco; Andrew A. August, Browne George Ross LLP, San Francisco; Daniel J. Bergeson, Bergeson LLP, San Jose; John L. Boos, K&L Gates LLP, San Francisco; Theodore A. Griffinger Jr., Stein & Lubin LLP, San Francisco

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(c) 2014 Daily Journal Corporation. All rights reserved.

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The $7 Billion Call
Oregon Quarterly: The Magazine of the University of Oregon – Winter 2008
By Eric Apalategui
 

When legendary New York judge Michael Mukasey called in 2004 to ask California attorney Randy Wulff ’70 to umpire a battle raging since the 9/11 attacks on the World Trade Center, Wulff almost couldn’t believe his ears. It wasn’t so much his surprise that Mukasey, who is currently serving as attorney general of the United States, wanted him to sort out the largest insurance claim in the history of the world. No, it was more the words slipping between his own lips: “Your honor,” he said, “it would feel unpatriotic to decline.”

When Wulff hung up he said to his wife, Krys: “That just sounded so cheesy. I can’t believe I said that.” Four years later, he chuckles at a line his Hollywood friends surely would edit out. “But it was true. That’s how I felt.”

• • •

Wulff visited the World Trade Center site when he went to New York City to interview with Mukasey for the job he would later accept.

“It’s impossible to go to ground zero and not be a little overwhelmed by the breadth of the tragedy,” Wulff says. “The only way [the nation] was going to heal is if they rebuilt something, hopefully bigger and better than ever. And the only way it was going to get rebuilt is if somebody sorted out this incredible legal snarl. And that’s what I was being asked to do.”

The lawsuits, it seems, started before the dust from the fallen towers cleared. A few months before the attacks, the Port Authority of New York and New Jersey awarded ninety-nine-year leases to Silverstein Properties and Westfield Group. Silverstein would manage 12 million square feet of office space, while Westfield leased 427,000 square feet of retail space, considered Manhattan’s most successful mall. The equivalent of all leased floor space would house every UO building and athletic facility—twice.

Silverstein and Westfield had negotiated insurance coverage for the complex, but by September 11 they had yet to finalize policy language. After the attacks, the myriad layers of insurance companies and the lessees hired attorneys by the platoon. Those lawyers endlessly labored over legalese, debated definitions, and disputed dollars.

Before Wulff became involved, proceedings settled some matters, most notably setting the upper policy limit at $7 billion—at least four times the previous record for a single insurance claim. But the sides couldn’t agree whether the value of the obliterated buildings and lost income hit that mark. The rancor grew.

The insurance companies called for an appraisal, guided by a three-person panel, to put real-dollar values on the losses. They chose panelist Jonathon Held of New York, one of the nation’s foremost appraisers. Bill O’Connell of Texas, an accountant in charge of Deloitte’s Forensic and Dispute Services division, represented the lessees. Then the two sides had to agree on a neutral third member—an “umpire” in disputed appraisals—to lead the panel.

“A significant amount of research went into potential candidates,” Held says. “We’re talking heartbeat-away-from-the-Oval-Office-type guys.”

The first contact was by e-mail. “I actually thought it was spam,” Wulff says. “I couldn’t fathom why someone 3,000 miles away was interested in me.”

Mukasey ultimately selected him over a prominent New York attorney. “I think Mukasey knew that Wulff had the right stuff and that, being from across the country, he would be less influenced by what he would read in The New York Times,” Held says. “The stakes were as high as you could ever imagine, and the distrust was beyond imaginable.”

O’Connell agrees. “By the time that Randy got involved, these parties just hated each other. It was like the worst divorce proceeding. It was just a fiasco.”

Kareem of the crop

New Yorkers are famous for being blunt, which gives extra credence to Held’s praise of Wulff: “He’s so damned likeable. He’s not arrogant. He’s not egotistical. Very unlawyerlike, I might add. He’s a very simple guy—with a big brain.”

Jim Van Wyck ’70 arrived at the same conclusion four decades earlier, after he met Wulff during registration and they were accepted into the University of Oregon’s honors college and Theta Chi fraternity. “The first time we went one-on-one on the basketball court, I knew everything I needed to know about him,” says Van Wyck, who became a Hollywood producer or assistant director for such blockbusters as Maverick and this year’s The Incredible Hulk. “He’s just solid as a rock.”

Randall W. Wulff grew up in Stockton, California. He and Krys attended Lincoln High School, where he juggled basketball and baseball with debate and theater. He spent summers bending sheet metal and installing air conditioners in the broiling San Joaquin Valley with his father, a mechanical contractor. “It was useful for me because there’s really something to learning what you don’t want to do.”

He knew what he wanted to do when he got to the UO: play big-time college basketball. Unrecruited, he showed up with his high school press clippings and a chip on his shoulder. The five-foot-ten guard made the freshman team but was stuck deep on the bench. He remembers finally realizing he couldn’t compete with elite athletes the day UCLA’s freshman team arrived at McArthur Court with a phenom named Lew Alcindor, the future Kareem Abdul-Jabbar. Wulff was mesmerized—and deflated.

“For the first time, it was so apparent to me that my mother fibbed when she told me I could accomplish anything if I tried hard enough,” he says.

Fortunately, Wulff had another career plan: the law. He concentrated on his studies, his fraternity, and student politics. Graduating during the Vietnam War with a low number in the draft lottery (which meant a high probability of being drafted), he enlisted in the National Guard. Active duty as a tank mechanic delayed law school a year but, like bending sheet metal for his father, strengthened his resolve. He chose Hastings College of the Law in San Francisco, where Krys was living. They married a year later, in 1972.

“In law school, grades have a far greater importance than they did in college,” Wulff says. His class started with 575 students, and he finished ranked first that spring. He repeated the feat his second year. The chief justice of the California Supreme Court offered an externship during his final year. “Whether I deserved it or not, I landed on the yellow brick road.”

“I’d like to think it was because of the notes I gave him,” jokes Steve English ’70, another close friend from Theta Chi and the honors college. Now among Portland’s best trial attorneys, English started a year earlier at Hastings, where “the competition is fierce.”

“We tracked him down like a dog,” says John Martel of Farella, Braun, and Martel in San Francisco, where Wulff got his first job out of law school. Martel, who cut his UO education short in the 1950s to serve in Korea, now is primarily a novelist and songwriter. “What was surprising to me is that [Wulff] was not only smart, but he was blessed with wit and personality. I was expecting some skinny guy with Coke-bottle glasses.”

Born to mediate

“Randy was heading in the direction of becoming a great trial lawyer. He had all the tools,” says Martel, whose protégé made partner in just six years. “But what he was really born to be was a mediator.”

Early on, trial law was exhilarating. Wulff would go full-force into preparing for a case, captivate a courtroom audience, and, if he played the game well, walk out victorious. When clients got his bill, they often lost that winning feeling. Worse than the shock of staggering legal costs, clients often felt powerless in solving their own problems. “It was very ego-gratifying, but increasingly it did not feel to me that I was helping people.”

In the mid-1980s, Wulff represented a group of Maui condominium owners in a dispute with developers. The twenty parties involved “couldn’t even agree when to break for lunch.” An opposing attorney suggested mediation. Wulff saw little to lose.

The mediator, Tony Piazza, settled the case quickly and made a lasting impression on Wulff. With encouragement from Piazza (“the Michael Jordan of this profession,” Wulff says), he took training and conducted occasional mediations. In 1994, after two decades as a trial attorney and frustrating back-to-back trial and mediation cases on the East Coast, Wulff returned home to become a full-time mediator, or “neutral.” In 2000, he co-founded Wulff Quinby Sochynsky Dispute Resolution in Oakland, close to his home in Piedmont.

“He’s conceptually brilliant. He grabs hold of things and internally collates, which is really a lot of what mediation’s about,” Martel says. “He knows how to diplomatically persuade others to his viewpoint. He’s firm, but his fist is always wrapped in velvet.”

English says his friend “became the go-to guy for extremely complicated, extremely contentious high-dollar cases that had to be solved short of trial.”

Some disputes will always land in court, with neither party willing to budge until a judge or jury rules. Mediators such as Wulff track court outcomes to add a dose of reality as they nudge clients toward early settlement. In California, most judges won’t schedule a trial unless mediation fails. That happens rarely with Wulff, whose settlement rates top 90 percent. In recent years, mediation has grown from cutting-edge to mainstream, with training programs such as the UO School of Law’s Appropriate Dispute Resolution Center helping meet the demand.

Wulff has mediated countless headline-worthy cases, including construction disputes involving Walt Disney Concert Hall and Staples Center in Los Angeles, Safeco Field in Seattle, and the Venetian in Las Vegas. When the federal government accused Microsoft of anticompetitive practices, class-action lawsuits arose in most states. Wulff wrapped up mediation of California’s case with attorneys at his house one Sunday. That settlement became a template for other states.

Being one of the nation’s top neutrals—the Mediation Society named him “Mediator of the Year” in 2004—has its payoffs. Wulff’s basic daily rate is $11,500, which increases for larger numbers of parties or travel. Most sessions last a day or two. “You get a chance to do the right thing and prosper at the same time. Honestly, there aren’t many jobs where you can say that,” says Wulff, who charged less for the World Trade Center work.

Although disputing parties often believe they are too far apart for mediation to succeed, that gulf usually isn’t so vast. Bridging that gap is Wulff’s particular talent. “If people could negotiate face-to-face effectively, I’d be out of work,” Wulff says. “I don’t try to persuade people they’re wrong. I try to persuade people they’re not quite as right as they think they are.”

Billions upon billions

By the time Wulff arrived in New York for the first hearings in September 2004, it seemed that everyone thought they were more right than everyone else. Some fifty to sixty high-powered attorneys crammed into hearings. Wulff, forever diplomatic, likens them to legal “dream teams.” Others are less charitable.

“Some of those guys,” O’Connell says, “they had to come through the door sideways, their heads were so big.”

If the egos were large, the stakes were gigantic. The panel divided damages into more than twenty categories. They first tackled the more than 200,000 tons of structural steel—enough to build at least twenty-five Eiffel Towers—used to construct the original World Trade Center. Not only did the three panelists have to determine the market price of so much metal but also the cost of fabricating, shipping, and erecting it.

Construction costs rise with taller buildings, in part because workers lose productivity when they have to climb 110 stories to work. Sorting it all out required exhaustive expert testimony and scores of exhibits entered into evidence over several weeks of hearings and eleven days of deliberations stretched across several months. Panelists wrapped up this first category with a price tag around $1 billion and a daunting realization that they already were straining their schedule.

The parties adopted a new strategy. Wulff led informal mediation, followed by formal hearings if necessary and ending with the panel’s binding decision. That process was sleeker but forced Wulff into an uncomfortable role as potential tiebreaker between Held and O’Connell’s opposing interests, “but it was apparent it was the best mechanism to try to finish this in my lifetime, so I agreed,” Wulff says.

Held still marvels at Wulff’s “ability even in the most stressful situations to never, ever give a hint of losing control. I can’t imagine that the guy’s blood pressure ever changed, even in the most stressful times.”

“If you’ve known Randy as long as I have, you would know when he’s angry,” English says. “It’s an almost imperceptible glint in his eyes and a slight flushing in his face. Otherwise, you wouldn’t know. And now I’ve given away his secret.”

The panel settled another eight or nine issues, each time with Wulff convincing fellow panelists to sign off on the agreements—even though both felt some of those deals tilted too much in favor of the other—because Wulff demanded unanimous approval.

“If I’m in his chair,” O’Connell says, “I want to make this thing absolutely bulletproof, so some poor sap doesn’t have to go through this again.”

From the time Wulff arrived, the appraisal process ground on for more than two years in periodic sessions but was really bogging down in early 2007. “Mediation’s a little like penicillin,” Wulff explains. “It is a wonder drug, but you can become immune.”

That’s when then–New York governor Eliot Spitzer swooped in. Using the agreements Wulff’s panel had reached as a starting point, he pushed the sides to settle. “God bless him for that,” Wulff says.

The final settlement amount is a matter of debate, obscured by confidentiality agreements and convoluted by the many layers of insurance companies that underwrote the policies. O’Connell’s sources tell him the total payments were within about 2 percent of the $7 billion cap, but others believe that estimate is high.

Spitzer held a press conference to trumpet the settlement. The three panelists shunned the limelight and convened at the Peninsula Hotel, where Held says Wulff bought “an ungodly expensive bottle of champagne” to toast the end of their service.

“For somebody in my line of work, this was the Super Bowl,” Wulff says. And the healing is in progress at ground zero. “The Freedom Tower is coming out of the ground.”

Eric Apalategui ’89 is a freelance writer who lives in Beaverton.

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The Velvet Hammer: Mediator tries to settle Morgan Hill courthouse flap
Mercury News – November 29, 2008
By Tracey Kaplan
 

The man in the white collar sounds like a minister joining a couple in holy matrimony: "If someone knows of a reason why we shouldn't be here, please speak up or hold your peace.''

But Randy Wulff is no man of the cloth.

Wulff is a nationally renowned Bay Area mediator who will try to settle an angry dispute between Santa Clara County and a group of contractors over work on a courthouse in Morgan Hill that's still unfinished after four years of wrangling.

Heading straight to court might be an easier choice. But there is good reason that in mediation circles Wulff, whose fees are fat, is famously known as The Velvet Hammer.

"He's worth every penny,'' said Palo Alto attorney William Eliopoulos, who regularly uses Wulff's considerable skills as a mediator. "I call him the patron saint of lost-cause cases.''

In a blue shirt set off by a bright white collar and cuffs, the mediator and former trial lawyer with the sun-reddened cherubic face could pass for someone in a more peaceful pastime — perhaps a cleric for a wealthy church.

But in the mean, pricey, head-butting world of high-end mediation, Wulff's settlement record is impressive, and includes the California class-action suit against Microsoft that made up to $1.1 billion available to the plaintiffs. Wulff, 60, rose to the national ranks after U.S. Attorney General Michael Mukasey, once a federal judge in New York, chose him to mediate the insurance dispute in the World Trade Center attacks. Wulff spent 21/2 years jetting from the Bay Area to New York to help craft the historic, multibillion-dollar settlement.

Case work

To get some idea of what Wulff will bring to the thorny Morgan Hill situation, it is instructive to look at the vast mix of techniques he used as he brought together another set of warring parties.

The recent battle, played out inside his Oakland office, was over multimillion dollar delays in overhauling Southern California highway bridges. And even his comical quip about "hold your peace," offered a peek at the kind of sure-handedness Santa Clara County taxpayers can expect from Wulff next spring.

"Sounds like we're at a wedding, doesn't it,'' he asks the two hostile camps glaring at each other recently from opposite sides of a long table inside a suite overlooking tranquil Lake Merritt. But the work Wulff does, he admits, is "more like a divorce."

And like most divorces, the universal sticking point is money. About $7 million is at stake in the Southern California case. In Santa Clara County, the "divorce" between the county and its contractors could cost taxpayers a lot more — an extra $17 million, on top of the $50 million the courthouse has already cost. To avoid a costly lawsuit, the parties have agreed to split the cost of hiring Wulff for two days in May — at $14,500 a day.

Wulff's path to success as a top-flight mediator probably began with his father. His dad owned a construction-related business, so the son grew up in Stockton reading blueprints. In the construction litigation world, contractors are known as the last of the riverboat gamblers: They don't bet in Vegas; they bet they can make a profit on public works projects like the courthouse.

When the gamble doesn't pay off, the parties frequently try nonbinding mediation. Such dispute resolution has saved private companies and local governments tons of money since Wulff helped pioneer the tactic in the 1980s.

The flip side

But not everyone is a fan of Wulff's mix of soft-spoken earnest attentiveness coupled with stiff reality checks.

The city of Milpitas replaced Wulff with a retired Monterey judge after he failed to settle a lawsuit over problems with City Hall construction.

"Put it this way — the city manager was so offended by Randy he walked out," said Kevin Gilbert, an attorney for the city in the case. "He's just one of those mediators you either love or you hate."

In the highway bridge dispute, the 17 lawyers, expert witnesses and contractors aren't wildly optimistic that Wulff can resolve four futile years of angry correspondence and help them avoid a looming trial that could cost each side $1.5 million in legal fees. The one-day marathon session in his Oakland office began at 9:30 a.m. and lasted well past the time when janitors begin vacuuming the beige-carpeted halls.

As an opener, Wulff invites the general contractor and the subcontractor to present their sides of the story. "Questions are allowed,'' he says, "But not, 'Do you always lie like that?' ''

That gets a laugh, but Wulff has to separate the two factions earlier than usual and spend the next 45 minutes shuttling from room to room smoothing feathers after a chance comment angers the general contractor.

Reads their minds

Asked privately after the equally convincing presentations how he can evaluate which side was really at fault, Wulff credits tone of voice and body language, as well as 35 years of experience as a former trial lawyer. He says, "I just go around pointing radar guns at people.''

His ability to read people comes in handy later when the subcontractor digs in his heels over money. The sub tells Wulff plaintively, "We've been in too much pain for too long to take that little.'' The mediator lets him vent without interruption. But as the night wears on, Wulff begins living up to The Velvet Hammer moniker. With calm urgency he warns the sub, "You've got to be sure your legitimate justified anger doesn't interfere with a business decision.''

The talks reach a breaking point when the contractor's side refuses to budge above an offer to the sub of $1.3 million, even though its defense is weak and its legal fees and possible losses are likely to exceed the proposed settlement. But the dynamic shifts in favor of the sub when the company's lawyers whip out a damning government document.

Wulff calmly reads the bomb of a memo to the contractor's attorneys, carefully calculating their reaction from the corner of his eye. Their deadpan faces don't fool him.

"When a trial lawyer doesn't react at all," he says, "that's when you know they're the hardest hit.''

The contractor tries bluster and bluff, but Wulff, talking softly but intensely, finally gets the contractor's chief attorney to step back from the financial cliff.

Even after the deal is struck 10 intense hours after the session began, there's work to do late into the night to make sure no one has buyer's remorse and everyone signs. Though weary after a grueling day, Wulff still reveals one of the secrets of his success.

"I've discovered a universal truth,'' he says with a smile. "Everyone wants to stop paying their lawyer.''

Contact Tracey Kaplan at tkaplan@mercurynews.com or (408) 278-3482.

Randall W. Wulff, 60
Education: University of Oregon; law school at the University of California-Hastings College of the Law
Family: Lives in Piedmont with wife Krystyna; has two sons, 32 and 29
What he loves about mediation: "There aren"t very many fields in life where you can do the right thing and prosper.—
Most unexpected skill: Tank mechanic (in Army Reserve)
Inspiration: His older brother, paralyzed in a surfing accident, ran his own construction supply company and became a champion sailor.
Passion: Grows 100 tons of grapes and makes wine on his Napa Valley ranch.
Gripe: "We send contingents to try to mediate human strife in the Mideast instead of sending people really qualified in dispute resolution.—

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Global Mediator Can
Navigate Around Big Egos

Daily Journal – September 14, 2007
By Craig Anderson
 

SAN JOSE - An accomplished jazz pianist, Yaroslav Sochynsky brings a variation of his subtle skills as a musician into play in his work as a mediator and arbitrator.

 

Attorneys say Sochynsky, known as "Yarko," is understated and commanding, marshaling his own extensive knowledge of the facts of each case to persuade the parties and their lawyers to listen to his suggestions and take them seriously. "He has a quiet demeanor that, in my experience, inspires clients to trust him," said Jack Boos, a San Francisco-based partner at Kirkpatrick & Lockhart Preston Gates Ellis who has hired Sochynsky to handle three mediations.

 

"People are not stampeded toward a result," Boos said. "Invariably, clients are impressed that 'this guy knows his stuff, so I'm going to listen to him.'" The 61-year-old Sochynsky, whose cases range from employment disputes to highly technical intellectual property disagreements, also has become a specialist in international legal squabbles.

 

A native of Berlin whose parents are Ukrainian, Sochynsky moved to the United States as a young child a few years after World War II. He attributes much of his awareness of the impacts of different cultures on the mediation and arbitration process to growing up in the melting pot of Brooklyn. Sochynsky has worked as a mediator and arbitrator since 1986, and has worked at the Oakland-based alternate dispute resolution firm of Wulff Quinby & Sochynsky since 2000.

 

He deals with both arbitration and mediation panels, serving on three-member arbitration panels that resolve international disputes while also dealing with matters of local concern, such as a contract dispute between the Golden State Warriors and the joint powers authority of the City of Oakland and Alameda County that operated the arena. A job that requires him to mediate disputes ranging from a power plant case to one focusing on the sale of a racehorse is never dull.  "What I find interesting is the variety," Sochynsky said.  Sochynsky is especially adept at navigating around big egos, attorneys say.

 

Theodore Griffinger, a San Francisco-based attorney with Stein & Lubin, said Sochynsky's "nuanced approach" does not keep him from calling an attorney's weak argument as he sees it. "He's not afraid to say, 'This doesn't make a lot of sense,'" Griffinger said.  Griffinger hired Sochynsky two years ago to deal with a "particularly difficult" dispute between the European buyer of a high-tech manufacturing facility and the American company that was selling it. He and other attorneys who spoke about Sochynsky praised his work ethic. "This is what he does for a living, and he's willing to work at it," Griffinger said, whether by spending long hours resolving conflicts or by devoting the time to understanding complicated issues as well as the attorneys on either side of the dispute.

 

Mediation, even in business disputes, is rarely a dry exercise in splitting the difference.  "That's the exciting part about the process," Sochynsky said. "It involves human emotions and conflicts they don't teach you in law school."

 

Attorneys say Sochynsky demands a certain decorum. Randall Widmann, a Palo Alto plaintiffs' employment attorney, said opposing counsel began calling him names at the end of a long day of mediation. Sochynsky put a quick stop to it.

 

"Counsel, it's a business matter," Widmann recalls him telling his legal adversary. "Let's not get emotional here." Sochynsky, whose father was a doctor, found that he liked the law and had an aptitude for it. He graduated from Georgetown Law Center in 1970, spent a year at White & Case in New York and then was given the option not to serve a four-year term in the U.S. Navy judge advocate's general program because the Vietnam War was winding down. By then, Sochynsky was in the San Francisco Bay Area, where he learned about an opening as a clerk for U.S. District Judge William Sweigert in the Northern District of California. He got the job, where he worked until 1973, when he joined the law firm of Landels, Ripley & Diamond.

 

Sochynsky remained at the firm for 27 years, working on business and litigation as well as technology, real estate, environmental and employment disputes. In the mid-1980s, the American Arbitration Association trained him as an arbitrator and mediator - with the support of his firm, where he had become a partner in 1977. He also enjoyed the new role. "I enjoyed being an advocate, but found I could be a better advocate if I understood the other side's position," Sochynsky said. In 2000, Sochynsky got in touch with two other former large firm partners, Randy Wulff and Bill Quinby, to form a mediation and arbitration service. All of them live in the East Bay, so their home office is in Oakland.

 

Sochynsky, who is divorced with two adult children, has handled more than 1,000 mediation and arbitration disputes during his career. He has arbitrated domestic disputes such as one between the manager of an Indian casino and the tribe.

 

But a lot of his business involves disputes between American and foreign companies. In mediation matters, Sochynsky said a key matter to resolve is determining which of the overseas executives is the one whose opinion ultimately will decide whether a case settles or not. "It's important to identify [the decision-maker]" because in many disputes, several company executives will show up for the mediation. "Sometimes it takes a while to figure that out," Sochynsky said. "The beauty of mediation is that it's a flexible process," he said. "A good mediator will have a variety of tools available." Sochynsky talked about a recent case in which the first day and a half was spent allowing the parties to talk to one another. But Sochynsky said he has developed an instinct to know when he needs to take an active role.

 

"At a certain point, it becomes important to be more firm," Sochynsky said. "You learn it by doing and not from a book." Sochynsky also garners praise for his work on arbitration panels, including from some attorneys who had never heard of him before because he is not a retired partner from a big-name, nationally known law firm.

 

John Shope, a partner with the Boston office of Foley Hoag, had Sochynsky on a panel deciding a dispute between the government of Guyana and American investors in a power plant there. Shope represented the government, which was accused by the investors of expropriating the plant.

 

"I was very pleased that, in the course of three weeks, he knew what the exhibits said better than I did," Shope said. He said he worries that, in disputes that involve a lot of technical jargon, that the panelists will lose interest. That did not happen in Shope's case, and he gives Sochynsky a lot of the credit not only for knowing the material so well himself but also for educating the other two arbitrators.

 

"He illuminated the matter for the other panelists," Shope said. In the end, the panel rejected the American investors' claim and found in favor of Guyuna's counter-claim for mismanaging the plant, which helped provide power for a dauxite mine, which produces aluminum. Sochynsky also was respectful to the witnesses from Guyana, whose thick Caribbean accents were not always easy to understand. Shope said he would recommend Sochynsky to an attorney trying an international case again, "unless their case is bad." "In that event, they would probably want somebody who is more easily deceived," he added.

 

Biographical Information

Affiliation: Wulff, Quinby & Sochynsky Location: Oakland

Age: 61

Rates: Mediation rate , is $550 per hour [2 parties], $650 per hour [3 parties], $750 per hour [4 or more parties]; Arbitration rate $475 per hour through the American Arbitration Association

 

Here is a list of attorneys who have used Sochynsky's services:

John Shope, Foley Hoag, Boston, Mass.

Jack Boos, Kirkpatrick & Lockhart, Preston Gates Ellis, San Francisco

Frank Cialone, Shartsis Friese, San Francisco

Jeffrey Lowenthal, Steyer Lowenthal, Boodrookas, Alvarez & Smith, San Francisco

Theodore Griffinger, Stein & Lubin, San Francisco

Randall Widmann, Palo Alto

Lou Highman, Highman, Highman and Ball, San Francisco

Lawrence Callaghan, Tucker, Ellis & West, San Francisco

**********

(c) 2007 Daily Journal Corporation. All rights reserved.

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Oakland Neutral a Favorite
In Handling 9/11 Claims
The Recorder – October 25, 2005
By Pam Smith

It used to be that Oakland neutral Randall Wulff wouldn't accept a case outside of his own time zone. But some assignments are too good to pass up. 

These days, the former trial lawyer spends about half his time in New York. In the wake of the 9/11 terrorist attacks, a federal district court picked him to preside over an appraisal proceeding to determine insurers' liability for property damage at the World Trade Center.

 

"It's a lot of lawyers, and it's a lot of [monetary] zeroes, and it's a lot of issues," said Wulff, who expects the proceedings to run at least through 2006. "It was a long way from home. But it was also flattering to be chosen."

 

Wulff has been putting himself in the middle of conflicts since the nascent days of mediation, said William Eliopoulos, a partner at Rutan & Tucker in Palo Alto, "so he's just slowly built up the reputation."

 

Wulff was a partner at Farella Braun & Martel when he began mediating part-time in the late 1980s, but it wasn't until 1994 that he left trial work behind to become a full-time neutral. He remained with Farella Braun for several years, until he and two friends opened their own outfit in 2001 near Oakland's Lake Merritt.

 

Michael Mukasey, the chief judge of the U.S. District Court for the Southern District of New York, said he picked Wulff to be chief umpire on the three-member panel handling the World Trade Center claims because he was "very well-qualified by background," adding that his experience in construction law certainly helped.

 

Alot of Wulff's work as a neutral has arisen from disputes over commercial construction for large projects such as the Arizona Diamondbacks'ballpark and the Walt Disney Concert Hall in Los Angeles.

 

"When he started doing mediations, the word in our community was positive," said Nomi Castle, whose Los Angeles firm specializes in the construction industry. "We didn't have many mediators that had experience in construction litigation."

 

But, as when he was a trial lawyer, Wulff's work at Wulff, Quinby & Sochynsky covers all stripes of commercial disputes, from real estate and intellectual property to contracts and securities law.

 

San Francisco Thelen Reid & Priest partner John Ralls said Wulff offers a "complete

package" of analytical talents and people skills. "He's just a full-court player."

 

At the outset, Wulff puts people "in a settling frame of mind," said Peter Harvey, of San Francisco's Harvey Siskind Jacobs, who has brought trademark disputes before Wulff.

 

When the parties in California consumers' antitrust class action against Microsoft Corp. turned to Wulff for mediation about three years ago, Townsend and Townsend and Crew partner Eugene Crew described himself as "a reluctant trial lawyer who was getting ready for trial. And I wanted to go to trial."

 

Wulff "wanted me to sheath my sword," said Crew, who represented the class in mediation alongside Townsend partner Richard Grossman. Crew says he remembers Wulff telling him with a smile, "Gene, you're going to let go of this case, and I'm going to help you."

 

"We laughed," Crew said, "And I thought to myself, `from my cold, dead hands you

will.'" In the end, Wulff got both sides to reach the basic terms of a settlement worth $1.1 billion.

 

Crew credits Wulff's trial skills, saying the mediator was effective at articulating each position persuasively. "He pounded on us, but we felt confident that he was pounding on the other side."

 

On the proactive scale, Wulff pegs himself a "9.5" on a scale of 1 to 10. But lawyers say he's adaptable, and skilled at reading his audience.

 

"I would classify him as friendly, but not overly obsequious, where he tries only to use persuasion," Castle said. "He uses all parts of his personality."

 

"Most mediators tend to be a facilitator," said D. Michael Schoenfeld, a partner with Sacramento's Murphy Austin Adams Schoenfeld. "The other type of mediator is a head-knocker. . [There are] very few mediators that can transition between the two, and Randy has that capacity."

 

There are still two occasions, though, when at least a few of his fans say they'd pass on using Wulff's services - due either to his fees of $10,000 to $12,500 a day or his availability.

 

"It's very expensive to have a Randy Wulff mediation," Castle said. "So if you have a $100,000 case, it just wouldn't seem to pay."

 

For more significant cases, though, he's a sound investment, said Daniel Miller, a partner with Miller, Starr & Regalia. "The first time I had a mediation with him, two thoughts came to mind: One, how could anybody be worth $10,000 a day. And two, I need to get into the mediation business," said Miller, who estimates that most mediators charge $250 to $600 an hour. "But I was amazed at the end of the mediation that I walked away actually thinking to myself that he was a bargain."

 

If you make it into his office, the neutral, who also handles occasional arbitrations, might chat you up about his other passion.

 

"I have my next career firmly in mind," he said: Grape grower.

 

"I love farming," he said. "Though I admit farming wine grapes is probably different than asparagus."

 

He's already got a toe in the business; he and his wife, Krys, have a home and two vineyards in Napa.

 

From somewhere in his office suite, he fetches a bottle of chardonnay made by a winery that buys their grapes and shows off the label, designed by the younger of their two grown sons. He and his wife want to trademark a name for the wine - "Lobo," which is Spanish for "wolf."

 

"One day, that's what I want to be doing full time," Wulff said. "We're just over the moon about our chardonnays."

 

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Wulff Chosen to Head 9/11 Panel on WTC Loss
The Oakland Tribune April 21, 2004

An East Bay attorney and mediator will play a pivotal role in determining the amount of loss resulting from the World Trade Center's destruction at the hands of terrorists Sept. 11, 2001.

Randall W. Wulff of Piedmont was selected Tuesday by U.S. District Chief Judge Michael B. Mukasey of New York to be chief umpire on a three-person appraisal panel that will address reconstruction costs as well as rental value and business interruption damages. Hearings are expected to begin later this year.

The battle over the monetary costs of the World Trade Center's destruction, and who will be paid how much for those costs, has become almost as twisted as the wreckage of the towers. And the battle has turned somewhat political, with New York officials touting the rebuilding of Ground Zero as crucial to the region's economic recovery.

World Trade Center leaseholder Larry Silverstein claims his insurers owe him almost twice their policy limits -- as much as $6.8 billion -- based on a switch in insurance forms that he believes recognizes the two impacts by two hijacked jet airliners as two separate losses. His claim went to a six-man, six-woman federal jury Monday after a 10-week trial.

After the jury -- and those in future proceedings involving other members of Silverstein's jury pool -- has determined the extent of the insurers' liability, it'll be up to Wolff's panel to determine what the actual losses are.

Wulff was with San Francisco's Farella, Braun and Martel from 1974 -- first as a trial lawyer, and from 1994 on as a "neutral" mediator -- until 2000, when he cofounded Oakland's Wulff Quinby Sochynsky, which exclusively provides mediation, arbitration and other alternative dispute resolution services.

He has helped settle almost 2,000 cases in the past 15 years, including the recent $1.1 billion settlement of the California class action against Microsoft. He also has helped resolve monetary disputes related to renovation of the Oakland Arena and construction of other high-profile projects from ballparks to Las Vegas casinos. And he has authored, edited or co-edited books on alternative dispute resolution.

His firm's Web site says his daily fee is $9,500 for cases in the Bay Area or Sacramento, $11,000 for cases elsewhere.

Wulff holds an undergraduate degree from the University of Oregon, attended the Netherlands Institute of International Business and holds a law degree from the University of California, Hastings College of the Law in San Francisco.

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Neutral Zone
Daily Journal Extra – November 25, 2002
By ERIK CUMMINGS

Need that case settled now, as in yesterday?  Check out our inaugural list of the state's most sought after mediators.  These 20 gifted neutrals expertly resolve the most complicated disputes outside the courtroom and end up saving everybody a lot of money.

 

…Randy Wulff

On one end of the mediation spectrum, Oakland mediator Randy Wulff says, are the message carriers – people who deliver offers between disputing parties. On the other end are the arm-twisters, mediators who push and pull the parties to settle their cases.

 

Wulff, 54, identifies more with the arm-twisters.  “I’m definitely more from the interventionist school,” Wulff says.  A former trial lawyer who spent 27 years with San Francisco’s Farella Braun + Martel, Wulff opened his own mediation shop, Wulff, Quinby & Sochynsky, last year.

 

“If parties [resolve] by me carrying offers back and forth, that’s wonderful, but I wouldn’t settle very many cases,” Wulff says.

 

That philosophy has worked, according to Wulff’s records. Since he began mediating cases in the mid-1980s with the American Arbitration Association, he estimates he’s settled at least 90 percent of the more than 1000 cases he’s taken.

 

Recently, he resolved disputes involving the renovation of Oakland Coliseum; the construction of Arizona’s Bank One Ballpark, Seattle’s Safeco Field and Los AngelesStaples Center, and new attractions at Universal Studios and Disneyland.

 

Although he’s best known for resolving construction conflicts, Wulff also counts intellectual property, general commercial, securities and real estate among his specialties.

 

Mark Peterson, a former colleague at Farella Braun, says Wulff, as a trial lawyer, was “head and shoulders” above others he encountered.

 

“He’s seen so many cases he can conjure up a solution that a less-experienced mediator might not find as apparent,” Peterson says.

 

He recently hired Wulff to settle a case with the blessing of his opposing counsel at Heller Ehrman White & McAuliffe.

 

“The best thing he does is understand the parties’ positions, not just their legal positions, but also their political and emotional positions,” Peterson says.

 

As a trial lawyer, Wulff took more than 100 of his own cases to mediation. That experience, he says, taught him a couple of important lessons.

 

First, he says, “I don’t ever urge someone to do something that I wouldn’t do if it was my money.”

 

Second, he won’t take a dispassionate approach to his work.  “If I can’t get a reasonable alternative [to litigation] to the table, I do take it personally,” he adds.

 

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Settlement Wizard
ADR Profile
Verdicts & Settlements March 3, 2000

A master mediator who has been involved in alternative dispute resolution since its infancy praises the process with the enthusiasm of a proud parent.

BY DEBORAH R, ROSENTHAL
Verdicts & Settlements Staff Writer

Talking with Randall W. Wulff about mediation is like talking to a proud parent: While he has a sense of the role that his own accomplishments have played, what is most evident is his zeal for, and pride in, the process itself.

Wulff has been cultivating and touting the mediation process almost since its inception. When he talks about mediation it isn't just a job: it's a revolution that has paralleled his own career.

Wulff's dispute-resolution journey began when he earned his juris doctorate in 1974 from the
University of California, Hastings College of the Law, where in 1973 he served on the editorial staff of the Hastings Law Journal. He was also Hastings' first extern to the Chief Justice of the California Supreme Court, where he learned about traditional dispute resolution firsthand.

Wulff came to law school with a business background; having attended the Netherlands Institute of International Business in 1968-69. He spent much of his 20-plus-year career as a trial lawyer with Farella, Braun & Martel. where he has worked as a fulltime neutral for the past five years.

Wulff first encountered mediation in the early 1980s while working as an advocate in a complex, 30-party construction lawsuit venued in
Maui.

Opposing counsel suggested mediation, which was, at the time, an undeveloped creature. Wulff reluctantly agreed, and the case settled expediently "in a manner that satisfied everyone." he says.

From that initiation, says Wulff. "I recognized that if I wanted to be a full service lawyer, it wasn’t enough to be a litigator. You also had to be a good user of the mediation process."

As an advocate, Wulff participated in over 100 mediations, observing many other mediators' work on securities, real estate, insurance coverage, construction defect and general commercial litigation cases.

In the mid-1980s, Wulff worked with a mediator from the American Arbitration Association in what Wulff terms a "marathon negotiation session" that yielded what he characterized a "very large" settlement before the case was even filed in court. According to Wulff, it was the AAA's largest mediated case settlement at that time. Shortly thereafter, the company approached Wulff and invited him to train as a mediator with the organization.

Wulff agreed, joining AAA's mediation panel in the late l 980s, where he mediated two cases each month while he continued his work as a trial lawyer. In 1990, Wulff received AAA's award for Outstanding Mediator in
Northern California.

Then, in 1994, Wulff returned from litigating two long trials on the East Coast and decided that it was time for a change. He ceased litigating, amicably parted with AAA and began mediating full time from within Farella, Braun & Martel.

"I went to law school because I wanted to help people, I've never encountered anything where you can reach and help as many people as you can with mediation. I get the opportunity almost daily to make a difference." he says.

Wulff describes mediating as "a lot like being in trial every day. You have to be 'on' every day. For that particular case it is the most important day in the life of that dispute, and you have to rise to the occasion."

But unlike litigation, Wulff sees mediation as an efficient goal-oriented tool. "You can see the results on a daily basis. You become addicted to quick results" says Wulff.

Wulff speaks with conviction about the growth and success or the mediation movement. Formerly a popular speaker and prolific writer on the subject. Wulff has recently cut back on speaking and writing.

"I am satisfied that the message is out there, and because there is just so much mediation work to be done." he explains.

Wulff describes his mediation experience as a "'real cross-section" of civil litigation matters, including construction defect and general commercial matters, environmental issues, intellectual property and trade secret cases, and professional negligence suits.

Although he professes no particular favorite when it comes to legal issues and in fact enjoys the diversity of his civil litigation practice, Wulff finds high-tech work fascinating, mostly because of its global import.

Wulff engages in other alternative dispute-resolution processes in a limited way as well, although he tries to keep this work to a minimum. For example, Wulff says he does "a few arbitrations per year" to remind myself how slow and inefficient the usual processes are"

In addition, Wulff accepts some special mastering work although he prefers not to and tries to "dissuade people from calling with special-mastering appointments where you have to babysit the case for, six months or a year. I like the negotiations. not the ‘tee-up’" says Wulff.

"I am someone to bring in when the parties are ready and serious." he adds.

Wulff has mediated cases with settlements from thousands of dollars to tens of millions: they have ranged from two-party cases to suits involving hundreds of plaintiffs and more than 150 defendants. Wulff estimates that 90 to 95 percent of the cases he mediates settle.

He attributes his success to two factors - his persistence and his ability to understand people.

"The cardinal rule is to never quit, just keep the balls in the air as long as humanly possible." says Wulff.

But dedication alone is not enough. "You really have to adjust to the individual personality. You have to determine really what people have to have, in order to feel satisfied with the settlement. If there’s a secret to it, it's walking a mile in everyone else's shoes." says Wulff.

Perhaps another one of Wulff’s secrets is the respect he hold for members of the legal profession. Says Wulff: "In my current job as mediator, I’ve met thousands of lawyers. The overwhelming majority or lawyers that I deal with are very ethical and conscientious about looking for the earliest opportunity to settle a case if it’s best for their clients."

According to his clients, Wulff has mastered both the rules and the secrets of mediation.

"Litigators appreciate Wulff’s ability to handle different types of personalities in a very persuasive way. I can’t say enough good things about him." says William T. Eliopoulos of
San Jose's Bergeson & Eliopoulos.

"I’ve had him mediate 10 cases and all but one have settled – and the one that didn’t settle was unsettleable." adds Eliopoulos.

"I would recommend him for any commercial case. I think he’s an excellent mediator - if not the best, then one of the best in the country, as far as I’ve experienced. He’s aggressive without being abrasive." says Eliopoulos.

Wulff is equally well-known in
Southern California. Kenneth Gibbs, senior partner of Gibbs. Giden. Locher & Turner. A 45-attomey firm that represents both plaintiffs and defendants in major construction defect cases, has worked with Wulff as a mediator on at least 20 such cases.

"He is simply the best." says Gibbs. "I think Randy is terrific at reading through smoke screens that parties sometimes put up and, really, with laser-like precision, figuring out what their positions really are and determining whether or not settlement is really possible."

Adds Gibbs, "He has a wonderful working knowledge of the law and a terrific personality."

Gibbs, who is himself a full-time mediator now, describes Wulff as "just a pleasure to do business with. I think he is the best mediator in
California, bar none."

Wulff predicts that the field of transactional law will experience the next big groundsweII in mediation. "I don’t frequently see mediation clauses in transactional documents." he says" "I think they think 'What's the value if it's voluntary?' But I know there's value."

In fact, Wulff surmises that the potential for mediation to work in disputes covered by a written agreement requiring mediation may be even greater than its potential to work in litigated disputes, because litigation attorneys are often hesitant to suggest mediation for fear that such a proposal might be perceived as a weakness.

"If it’s written in, everyone can go and still save face." explains Wulff, "and the settlement rate of those who 'have to go' is the same. There's virtually no downside."

Wulff also finds "particularly intriguing" the possibility of using mediation "in a political arena, where you really might be able to contribute value on a much grander scale in areas of conflict." Says Wulff, "What could be more worthwhile?"

Wulff may have achieved career success and a reputation in Southern California as well, but his heart belongs to the Bay Area" Born in Oakland and raised in Stockton, Wulff married his high school sweetheart and now has two sons. He enjoys travel" and is planning trips to
Egypt, Israel and Italy and a photo safari in East Africa.

In addition, says Wulff, "My wife and I are now farmers." Wulff and his wife recently purchased a small home in
Napa County.

"I’m eager to see if it's fun and maybe make a little wine." Wulff said.


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Ready, Set, Mediate
California Law – BUSINESS July 29, 1996

ALTERNATIVE DISPUTE RESOLUTION: Failed mediations are generally the result of poor preparation. Spending sufficient time in advance lets both lawyer and client get the most out of the process. By William A. Quinby

While mediation can be faster, less formal and less costly than litigation, it still takes preparation. As with traditional litigation and formal arbitration, the results reached in mediation largely depend on what the parties and their attorneys have done ahead of time. One of the most important aspects of meaningful preparation is selecting a mediator appropriate for the dispute. Equally important for an attorney seeking a good result is educating the client about the process. Effective mediation advocacy also requires careful attention to materials that will be submitted to the mediator or exchanged between the parties before the mediation.

The beauty of mediation is that the process can be anything the parties want it to be. The choices range on a continuum: At one end is a strictly facilitative mediation (sometimes called a "true" mediation), where the mediator simply helps the parties negotiate a deal. At the other end is a strongly evaluative mediation, closer to a traditional settlement conference, where the mediator expresses opinions about the parties' positions, the evidence and the law.

Counsel should not only reach an agreement on which approach is best to resolve the dispute but should also agree on when the mediation will occur, what discovery is essential and which other ground rules, if any, are appropriate. The starting premise, of course, is that the parties have (or will have by the time the mediation starts) enough information to intelligently evaluate their cases.

One of mediations greatest advantages is the control the parties have over who the mediator will be. While forum-shopping may be frowned upon in other forms of dispute resolution, it is an important part of the mediation process. Ex parte communications with prospective mediators are not only proper but encouraged.

Unless the practitioner has used a potential mediator's services before, counsel and client should interview the mediator to determine if the mediator is qualified to help resolve the dispute. The mediator should be asked specific questions about factors that are important to the case. Counsel should also ask around about the mediator's reputation and should consider creating a data base that shows subject matter, results and other relevant facts pertaining to cases in which a particular mediator's services were used.

Among the several significant factors that should be considered in selecting the mediator are mediation style, training, experience and areas of substantive expertise. For example, some mediators rely heavily on separate caucuses to move the process along, others do so only when asked and a few actually discourage the approach. Similarly, different mediators require different kinds of pre-mediation submissions. Knowing a mediator's preferences in these areas helps not only in choosing a mediator but also in preparing the case for the mediation.

Likewise, counsel should ask specific questions about a prospective mediator's training, as well as actual mediation experience, including the nature and number of cases mediated. When asking about the mediator's experience, also ask for names of attorneys who have used the mediator's services and then call those attorneys.

Mediators who use a facilitative approach will say that substantive expertise is not important because mediation is "process-driven." Of course, a mediator should have strong process skills, but it is at least as important to have a mediator who is familiar with the matters in dispute. Even a modicum of subject-matter expertise permits the mediator to more credibly play the devil's advocate and provide reality checks through educated evaluation of the issues, both of which are effective tools in helping the parties reach resolution.

Finally, when choosing a mediator, clarify the retention. Possible conflicts of interest must be dealt with, as well as the prospective mediator's availability and fee schedule. Always ask if the mediator has a cancellation policy. The mediator may charge for a day of services if the matter is continued or canceled.

Once the mediator has been selected, a decision must be made about who will attend the mediation. Counsel must also prepare the client and assemble the required pre-mediation submissions.

Experienced mediators generally agree that the final decision-maker - the person whose presence is truly necessary to reach a full settlement of the dispute - must be physically present. Where there are individual parties, they have to attend. In all other instances, the person whose consent to settle is required must be there. This is particularly true in California since Levy v. Superior Court, 10 Cal.4th 578 (1995), where the Supreme Court held that the litigants themselves, not their attorneys, must sign the settlement agreement for it to be enforceable pursuant to Code of Civil Procedure Section 664.6. In the occasional instance where a party representative other than the final decision-maker attends, the representative should be someone whom the final decision-maker trusts.

Bringing an expert witness to a mediation can be extremely effective, especially in a very technical dispute. Much as a mediator with subject-matter expertise can provide a reality check to the parties, a true expert can educate everyone, including the mediator. But the expert -and the client - must understand that the expert is there not to give one-sided opinions as a hired gun, but to answer specific questions essential to increasing settlement prospects.

Helping the client understand how mediation is different from litigation or arbitration is a critical part of a mediation advocate's preparations. To make the process work to their advantage, clients need to understand the differences in the roles of the neutral, counsel and the parties. The client should be told that the mediator is impartial, has no decision-making authority, will maintain confidences and will likely play the devil's advocate in testing the weaknesses of each side's position. Counsel should also brief the client on the mediator's training, experience and reputation.

The actual mediation process should be reviewed with the client This includes the pre-mediation submissions, the introductory phase, the opening statements, the joint and separate caucuses and, in most cases, the memorandum of agreement. The explanation should be such that, when the mediation actually occurs, the client will understand exactly what is going on and why.

The client must be told that counsel's role is markedly different from his role at trial, in arbitration hearings or at depositions, in several respects:

o For strategic reasons, only some parts of the case may be presented at the mediation.

o Few, if any, objections to evidence will be made.

o Counsel (and the client) will be open and candid with the mediator in separate caucuses, and if counsel acknowledges weaknesses in the case, it is for a good reason.

o Counsel (and the client) will be more conciliatory than at trial. Mediation is not the place for "in your face" posturing, threats and ultimatums; this behavior is truly counterproductive. The goal of the parties and the mediator is to create a cooperative atmosphere that is conducive to resolving the dispute.

o If counsel expresses empathy for the other party's position, it is for a good reason.



Counsel should keep In mind
that the mediator Is not making any decisions -
the parties are.
 

When explaining the client's role, the practitioner must first evaluate how active the client should be in the mediation. This depends on such things as the client's skills as a communicator, the need for the client to "vent" by telling his story before seriously negotiating and how effective the client will be with the other parties and their counsel. An articulate client who actively participates in these aspects of the process can be extremely effective.

Whether or not the attorney counsels the client to play an active role, the mediator will almost always encourage the client to be open and candid. Counsel should review with the client the sorts of questions the mediator is likely to ask, and discuss how the client should respond - in much the same way as a client would be prepared to testify in a deposition or at trial. Unlike in those adversary settings, however, a client in mediation really does not have to answer, at least not with the other side in the room. The client can be assured time may be taken, if necessary, for a confidential conference.

Finally, clients should be encouraged to listen, evaluate and, above all, keep an open mind during the mediation.

Occasionally, a mediator will ask for confidential position papers that are not exchanged but submitted in advance to the mediator alone. More often, the mediator will request that the parties exchange position papers. If there are matters that can be stated only in confidence, separate briefs on those topics can be submitted to the mediator alone.

Counsel should keep in mind that the mediator is not making any decisions - the parties are. Thus, the audience for the position papers is the other party and opposing counsel, not the mediator. The same is true of opening statements and any other joint exchanges of information: The person who needs to be persuaded to settle is the other party.

The written statements need not be lengthy, but they should include a brief statement of factual and legal issues and the party's position. Critical documentary evidence should be attached to the statement. This might include pertinent contracts and documents; answers to interrogatories and key excerpts from deposition testimony; damage itemizations; and expert reports, if any. Copies of relevant pleadings and pertinent case law may be helpful, especially if the parties expect the mediator to play an evaluative role. Demonstrative evidence is also a persuasive tool, since it helps everyone focus on specifics.

The mediator may also request a history of previous settlement discussions and a brief discussion of any subjective factors that bear on the parties' prospects of reaching resolution. Time spent preparing a concise and persuasive mediation statement and reviewing the statement with the client will significantly increase the likelihood of a successful mediation.

Failed mediations, like unsuccessful trials and arbitrations, are generally the result of counsel's poor preparation. Selecting the most appropriate mediator, determining who should attend the mediation, educating the client about the process and spending time to prepare persuasive pre-mediation submissions will allow the practitioner to make the most of mediation and to get the best results for clients.

William A. Quinby, a former litigation partner with Crosby, Heafey, Roach and May in Oakland, is a mediator and arbitrator affiliated with the American Arbitration Association's Center for Mediation In San Francisco.

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Attorney was picked by judge in New York to help on panel determining value of damages
By Josh Richman, STAFF WRITER, Oakland Tribune