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LOS ANGELES DAILY JOURNAL

Profile of Fred Ashley

This article appeared on page 1 of the Verdicts and Settlements Section of the Los Angeles Daily Journal on July 11, 2008.

Mediator is Always Game for a Mental Challenge

By Greg Katz
Daily Journal Staff Writer

IRVINE - Leaning eagerly over a table at ADR Services' office, mediator Fred T. Ashley's eyes light up as he extols his love of the German board game "Settlers of Catan."

In the strategy game, players represent settlers on an island, negotiating with one another to maximize their shares of the island's natural resources.

Ashley and his family have outgrown the original game, buying collections of add-ons to further complicate the already intricate moves.

"When you've got all these additions on it, it becomes very complex," said the mild, easygoing 58-year-old Ashley, who specializes in employment and business disputes.

The Orange County based neutral is always game for a mental challenge.

Besides being an avid strategist, Ashley is a frequent visitor to the downtown Los Angeles Walt Disney Concert Hall. His favorite composer is Claude Debussy, the French impressionist noted for his cerebral musical structures, which relied on mathematical formulas while rejecting classical harmonic norms.

And Ashley also is the rare full-time mediator who will admit that he misses his old job: litigating. The reason is no surprise.

"What I miss about litigating are some of the intellectual sides of it," he said. "On the other hand, there's the adversarial side of it ... [that] I don't miss."

After graduating from Loyola Law School in 1978, Ashley started out as an employment lawyer. He landed at Paul, Hastings, Janofsky & Walker in 1983, where he argued the management side of employment disputes. Four years later, he left to set up a private practice, where he switched to representing plaintiffs in employment disputes and started handling business cases, as well.

Ashley started mediating in 1993, just before mediation pushed its way into the mainstream, when friends started asking him to mediate their cases. But, at the time, mediation didn't look like it would become his main ADR gig. "I initially was doing arbitrations," said Ashley, who was briefly a panelist for the American Arbitration Association, "but I found mediation was my first love."

He established a private mediation shop in 1994, and his litigation and mediation practices overlapped until 2005, when he stopped litigating.

Two years later, Ashley joined up with ADR Services. He said he made the move because the company was opening up a new Irvine office adjacent to John Wayne Airport. It was near his home in Dana Point and close to both Los Angeles and San Diego counties, where he does a considerable amount of mediating.

As a mediator, Ashley said he tries to be fluid, employing whatever style is necessary to reach a settlement.

"If you do it right, people leave equally unhappy - or, at least, marginally happy with you," he said with a smile.

One recent case that tested his flexibility involved a longtime employee's claim of sexual harassment against her employer.

The abuse had resulted in a nervous breakdown for the plaintiff, Ashley said, and in the case, it became apparent that the perpetrator had harassed other employees, as well.

Ashley said he thought the employee's case was strong when taken face value, but then he noticed that she could not win in court due to technicalities in federal law.

To get the dispute settled, he shifted from evaluating the relative strengths of the cases to getting the two sides to think of themselves as a team that would benefit from a settlement.

"As human beings, we tend to want to help others who we perceive as part of our same group," he noted. "Even though they didn't have to do so at all, the employer and their representatives - whom I applaud - tried to make it whole." With the new team-oriented perspective, the employee conceded that she didn't want to leave her job. The settlement covered her lost wages and medical expenses, and changed her role in the company so she wouldn't have any further contact with the alleged perpetrator.

Ashley's ability to change the point of view on a dispute stands out to the lawyers who work with him.

San Francisco attorney J. Scott Bonagofsky of Emison Hullverson Bonagofsky called on Ashley to mediate a recent employment case.

"Most mediators, when you wind up really far apart early in the day or in the middle of the day, they only have a couple things they can try to bridge the gap between the parties," but Ashley used a variety of techniques that got the case to settle, Bonagofsky said.

"The case settled at what was ultimately his mediator's proposal number," Bonagofsky said. "I think he nailed it - at exactly the most they would pay and exactly the lowest we would take."

Bonagofsky added that, with Ashley's background in both plaintiff and defense work, the mediator has an acute understanding of both sides in employment disputes.

His only criticism: "I wish that he were up in San Francisco so I could use him more often."

San Francisco's loss is Southern California's gain, according to Heidi D. Hutchinson, a Mission Viejo-based lawyer with Sessions & Kimball, who has used Ashley's services numerous times in both public and private sector employment cases.

"We're lucky to have him down in Orange County," Hutchinson said. "He understands the needs of business, but he also understands the personal issues. I do employment work, and he gets it."

Ashley said one important key to settlement is helping attorneys and parties to see the weaknesses in their cases, but doing so gently.

"You can't come off as an adversary," Ashley said. "You have to engage them in a discussion, in a collaborative effort, almost. If you do that right, you enhance their trust in you as a mediator."

Lawyers recognize the effectiveness of that technique.

"He has the ability because he is very bright ... to ask you questions about your case in a way that is nonthreatening but makes you think about it," said Santa Ana attorney Charles W. Matheis Jr. of Beam, Brobeck, West, Borges & Rosa.
Matheis has worked with Ashley on several cases, and all but one settled.

"He picked a number that he thought it should resolve at, and we didn't resolve it at that number. We went to trial, and it resolved pretty much at his number," Matheis said of the failed settlement. "We spent a little more money than we should have and probably should have listened to him."

The lawyer added that Ashley is not just adept in persuading lawyers but also at helping their clients see the light.

"If you're having any client-control problems, he has a good personality to deal with that," Matheis said. "He's not an in-your-face guy. He's a cerebral guy."

Biographical Information
Location: Irvine
Age: 58
Affiliation: ADR Services
Areas of specialty: Employment and business
Rate: $4,300 a day, $485 an hour

Attorneys who have used Fred Ashley's services include: J. Scott Bonagofsky, Emison Hullverson Bonagofsky, San Francisco; Charles W. Matheis, Jr., Beam, Brobeck, West, Borges & Rosa, Santa Ana; Heidi D. Hutchinson, Sessions & Kimball, Mission Viejo; Christy Joseph, Snell & Wilmer, Costa Mesa; Marla Merhab Robinson, Merhab Robinson & Jackson, Santa Ana; Christine Baran, Fisher & Phillips, Irvine; James P. Stoneman II, Law Office of James P. Stoneman II, Claremont; Thomas E. Beck, the Beck Law Firm, Los Alamitors; Hema C. Bhamre, Self & Bhamre, Newport Beach; Paul E. Crost, Reich, Adell, Crost & Cvitan, Long Beach; Lyne A. Richardson, Ford & Harrison, Los Angeles; Stacy D. Shartin, Seyfarth Shaw, Los Angeles

greg_katz@dailyjournal.com

copyright Daily Journal Corp., 2008. Posted with permission.