Mediation
Mediation is a form of alternative dispute resolution in which an independent and impartial mediator helps the parties discuss concerns and if reach a voluntary agreement. The entire process is confidential, unless a record is required by law where one party is a state agency, or by the parties where an agreement is reached to created it. The advantage of mediation is that the parties are in complete control of the outcome, and no resolution is reached without the consent and approval of everyone involved. Sometimes only a settlement of a claim needs to be reached. In other circumstances, a true resolution of the differences between the parties needs to be achieved.
The skilled mediator may use a variety of techniques and styles in helping the parties reach an agreement. Sometimes a strong directive and evaluative approach is required; other situations require that the solutions be elicited from the parties without suggestion by the mediator. Often, it may be in the best interests of resolution for the parties to talk face to face; other times, settlements can be achieved by each side talking privately with the mediator.
In any event, the experienced mediator should be able to identify and articulate the parameters of the claims involved were they to proceed in litigation, including some insight as to the legitimacy of the claims and defenses, the nature and quality of the evidence required for success, the procedural difficulties that may be encountered, and of course, the additional costs were an agreement not reached. Further, the mediator should be familiar with the manner in which the mediation process may be abused, and thwart such efforts as a matter of fairness and decorum.
In Oregon, as in most states, there is no license requirement to serve as a mediator, thus the parties are essentially on their own with quality control issues. Mediators for state agencies in Oregon must meet the minimum qualification and training requirements established by the Oregon Dispute Resolution Commission and set out in Oregon Administrative Rules, in addition to maintaining a minimum continuing education requirement. Mr. McCarthy is a member of the Oregon State Agency Mediator Roster maintained by the Oregon Department of Justice, and is there qualified for alternative adjudication services in Mediation or Facilitation involving two to five parties, Litigation Settlement Mediation, and Neutral Evaluation of Legal Disputes. He is also a member of the Oregon Mediation Association and subscribes to its ethical rules, along with those applicable to ADR providers as part of the Rules of Professional Conduct of both the California and Oregon State Bar Associations.
Arbitration
Arbitration is another form of ADR where the parties agree to present their issues before a neutral arbitrator, who acts much like a judge in a civil court trial. The arbitration may be agreed to be binding on the parties, or not. In the arbitration, each party calls witnesses, presents evidence, and offers oral and written argument, much like in court. The arbitrator’s decision may be enforceable as a judgment.
Experience
Mediation
Marion County Circuit Court, Oregon (2007-)
Contra Costa Superior Court Civil Case Evaluator (1993-2006)
Contra Costa Superior Court Settlement Comm'r (2002-2006)
Various privately retained mediation and arbitration in the areas of elder abuse, personal injury, and other tort litigation. Private or court appointed mediator in Alameda, Contra Costa, Santa Cruz, and Marin Counties.
Judge Pro Tempore
Contra Costa Superior Court Judge Pro Tem Panel (1993-2006)
Alameda County Superior Court Small claims and traffic (1981-2006)
Alameda County Superior Court Limited Jurisdiction civil court trials (1981-2006)
Alameda County Superior Court Limited Jurisdiction law & motion (1981-2006)
Alameda Municipal Court, criminal arraignments and sentencing (1981-1984)
Solano County Superior Court Domestic Violence Protective Order Judge (1994-1995)
Arbitration
Alameda County Bar Association Fee Arbitration Panel (1989-2006)
Solano County Municipal Court Arbitration Panel (1994-1995)
Alameda, Contra Costa, and Marin County Arbitration Panels
Additional ADR
The more substantial matters within the last few years, the details of which are confidential, are as follows. Identities of cases and counsel where upon the public record, are available.
NEGLIGENT DISPOSITION OF CREMATED REMAINS (2006) Marin County Superior Court. Plaintiff, a psychologist, suffered the spreading of her father=s ashes in San Francisco bay instead of the intended location at the family farm in the midwest, homesteaded generations ago.
MEDICAL MALPRACTICE (2006) Contra Costa County Superior Court. Plaintiff's decedent committed suicide at a psychiatric facility. Case was referred as a settlement commissioner and achieved a $125,000 resolution was achieved.
COLLECTION ACTION (2005) Contra Costa County Superior Court. Resolution wherein defendant paid $125,000 to plaintiff.
REAL ESTATE SALES DISPUTE (2005) Contra Costa County Superior Court. Resolution with agreement to the transfer of $100,000 from one litigant to the other after the estate sale of real property.
REQUIREMENTS CONTRACT DISPUTE (2004) Solano County Superior Court - successful mediation over a bottling contract between a winery and a bottling supplier.
CONSTRUCTION CONTRACT (2004) Contra Costa County Superior Court. This dispute concerned an owner-builder who was unhappy with the work of a subcontractor and sued him for damages
MEDICAL MALPRACTICE (2003) Contra Costa County Superior Court - Very short medical malpractice mediation where the defense had no intention to settle, but sought only discovery.
SERVICES CONTRACT (2003) Santa Cruz County Superior Court. Dispute between a clothing supplier and a retail service provider.
PERSONAL INJURY, AUTOMOBILE ACCIDENT (2003) Contra Costa County Superior Court. Arbitration with award around $17,000 to the plaintiff for injuries and losses sustained in an automobile accident.
SERVICES CONTRACT (2003) Alameda County Superior Court. Settled at arbitration for $10,000.
PERSONAL INJURY, PREMISES LIABILITY (2002) Contra Costa County Superior Court. As a settlement commissioner for the Court on the day of trial, after several days of unsuccessful mediation and judicially supervised settlement conferences involving massive impalement injuries to the plaintiff, the parties, through their respective counsel, were able to reach a settlement, which consisted of the recovery of $15,000 by the plaintiff in exchange for a dismissal of the action with prejudice in favor of the defendants.
MEDICAL MALPRACTICE (2001) Contra Costa County Superior Court. Interesting and highly knowledgeable Plaintiff in propria persona.
ELDER ABUSE (2001) Plaintiff and his decedent suffered extreme emotional distress for unsterilized maggots at the defendant skilled care facility, infesting an opened cranium secondary to a meningioma. The matter resolved for $150,000.
Additionally, Mr. McCarthy has resolved cases involving legal malpractice, attorneys= fee disputes, appellate matters (First District Court of Appeals), structural pest control, and family law property disposition issues.
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