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Mediator Profile

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Friday, June 21, 1996. Page 4

CASE IN FOCUS

MEDIATOR PROFILE

Name: Alexander S. Polsky.
Name of firm: JAMS/Endispute --- ADR, Mediation/
Arbitration Offices of Alexander S. Polsky.

Location of firm: Main: JAMS/Endispute Office 500 N. State College Blvd.. Suite 600, Orange, Calif. 92680. Available at any JAMS/Endispute Office or the office of a party. Personal office: 5911 E. Spring St.. No. 388, Long Beach, Calif, 90808.

Education: University of La Verne (J.D., 1977): Wayne State University (B.S., 1974).

Affiliations: Former Director, Orange County Bar Association: Chair ADR Committee, Orange County Bar Association: American Bar Association, Corporate Counsel Committee, ADR Subcommittee: Director Orange County Claims Adjuster's Association; Member, Southern California Defense Attorneys Association: Director. Orange County Trial Lawyers Association.

Publications: "Risk Based Facilitatitive Mediation vs. the Distributive Method of Negotiation" published by. American Bar Association Litigation Section Journal, Summer 1996.

Length of time practicing law: 19 years.

Types of cases: Polsky's practice emphasizes highly emotional and very complex matters, including architect E&O). construction defect, franchise, insurance bad faith, labor-relations and wrongful termination, medical negligence, municipal code enforcement and license revocation, real estate transactional and nondisclosure (licensed California broker), serious injury, product liability, wrongful death and toxic exposure.

Background: Polsky grew up in Detroit and returned-to a suburb near his hometown after graduation from Wayne State University with a degree in elementary school education. He taught special education in a Detroit suburb and credits much of his success as a mediator to the skills he developed teaching at the school "I learned to simplify the issues and developed the ability to have a calming effect in a mediation. Both skills are crucial to the resolution of highly emotional cases." After law school, Polsky moved to California, where he worked as both a public defender and a deputy district attorney for Orange County before joining Haight, Dickson, Brown & Bonesteel, Polsky was responsible for complex commercial and tort litigation at the firm. He credits this experience with providing Invaluable insight" into the complex cases he now mediates. In 1986, Polsky left Haight to form Polsky, Robinson & Jones. His firm litigated a broad range of tort and commercial litigation cases. Over the years, Polsky's practice began to emphasize alternative dispute resolution. In 1994, he separated front the firm and devoted his efforts to ADR. In 1995, Polsky merged his ADR practice with JAMS/Endispute. He now serves as a mediator, a discovery referee and an arbitrator.

Keys to success: Polsky attributes his 97 percent success rate to multiple factors. First, he uses "risk based facilitative mediation" in virtually all cases, Polsky de rived the technique from traditional facilitative mediation. The process focuses the parties on their risks and costs of proceeding with the litigation, which affects the value the parties place on the litigation. Polsky also compels the parties to consider non-monetary costs, such as reputation, continued business relations, emotional considerations, family matters and risk tolerance. He favors facilitative mediation over distributive bargaining, in which the parties exchange offers and counteroffers. "Distributive negotiation makes a highly emotional experience feel like buying a car the party that made the last move usually wins." Polsky also values his ability to feel and express compassion for both sides. "Many times, the plaintiff is looking for an apology, or an acknowledgment that he or she has suffered. After that is resolved, it becomes much easier to discuss settlement in a businesslike manner." Above all. Polsky believes in a "customer service approach" to ADR services. He is available at the location of the parties and will travel throughout the world. He will even hold hearings at odd hours and in unusual locations.

Favorite mediation moment: During a toxic exposure case, the dying plaintiff needed the chemical company to acknowledge his suffering. Polsky facilitated a four hour discussion between the corporation's senior executive and the plaintiff. "Once the two realized they were each generally normal guys and certain personal issues were hashed out, we could get to the key issue of whether a jury would find that the exposure caused an immunesuppressive disorder." The case settled. According to Polsky, none of the three prior mediators had considered the emotional issues.

Practice pointer: "I strongly encourage attorneys to be willing to bring their client to the mediation and to let the party talk." Polsky also encourages mediators to be aware that not every case is about money alone. "Sometimes, they are about understanding, compassion or recognition. Discovering and addressing the plaintiff's primary goal greatly assists the process."

Personal: Polsky describes his wife, Ellen, as "a blessing --- patient and tolerant" Their daughter Julie just completed her second year of law school at the University of Washington, in Seattle. She is currently interning at the State Attorney General Consumer Affairs Division. "She's bright, beautiful and will need a job!"

What other lawyers and judges say about this attorney: David Belz, of Laguna Niguel, described Polsky's mediation style as "very effective and productively received by both sides." The Hon. John Watson, of the Orange County Superior Court. stated that Polsky is "extremely hardworking, aggressively tries to resolve matters and has a very broad range of experience which makes him invaluable in settling lawsuits. He has the energy, self confidence and knowledge to tackle matters in virtually any area of the law." Peter Noronha, a plaintiff's attorney with Chambers, Noronha & Lowrey (and a past president of the Orange County Trial Lawyers Association) described Polsky as having "a sound mind and a fair mind. He is well respected and very judicious in his manner."

THE CASE

$1.9 Million Accord Reached in Construction Defect Case

Type: Construction defect. construction negligence, condominium complex.

Settlement: $1.9 million tall defendants).

Case/Number: Case I.D. Confidential.

Court/Date: Orange Superior / March 19, 1996.

Judge: Hon. H. Warren Siegel. Dept. 32.

Mediator: Alexander S. Polsky of JAMS/Endispute.

Attorneys: Plaintiff Ä Ross W. Feinberg (Feldsott, Lee & Feinberg, Newport Beach). Defendant -Joseph J. Cullen (Mower, Koeller, Nebeker, Carlson & Haluck. Irvine).

Facts and contentions: Between 1990 and 1992 the defendant developer constructed a 96-unit residential development in Aliso Viejo. Beginning in approximately 1993 the plaintiff homeowners association began noticing numerous leaks in the units' roofs, decks and windows. In addition, the deck and stair coatings began to deteriorate and the units developed stucco cracks, serious plumbing problems, poor water pressure and other problems. The homeowners association brought this action against the defendant developer based on strict liability, breach of contract, breach of warranty, breach of contract of good faith and fair dealing breach of fiduciary duty, negligence negligent misrepresentation theories of recovery. The defendant developer brought cross-actions against the approximately eighteen sub-contractors who worked on the development based on indemnity and negligence theories of recovery. The plaintiff contended that the developer's negligence was responsible for the construction defects. The developer contended that it was not negligent and that any negligence resulting in the alleged defects was the fault of the subcontractors.

Damages: The plaintiff claimed $2.7 million in damages.

Settlement discussions: Settlement discussions were not disclosed.

Mediation: The mediation was held in ten sessions over a six-week period between January, 1996 and March. 1996 before Alexander Polsky of JAMS/Endispute. resulting in the reported settlement. This case is reported with the consent of both parties and their respective clients.

Other Information: The settlement was reached approximately two years after the case was filed.