“Mediation Magic”: Judge David A. Garcia (R) Shares His Approach to Conflict Resolution*

Lawyers are mediating disputes and providing legal advice.

Our housing providers hone best practices and find ways to mediate conflict. Still, it takes a degree of luck to stay out of litigation these days—a prospect made more daunting where insurance carriers are receding from our industry.

Conflicts are also inflamed—by the scarcity and high cost of housing and by the severe penalties under the Rent Ordinance that threaten the mere appearance of misconduct. They begin as a lawsuit and work their way through superior court, where a judge interprets the law to allow the facts to play out. Cases end with a winner and loser—that is, unless the parties work to get the case settled.

Retired Judge David A. Garcia is a mediator and arbitrator at JAMS ADR Services. He presided over hundreds of landlord-tenant disputes during his time on the bench, and he now lends his wisdom to facilitating their resolution. Justin A. Goodman of Zacks & Freedman, PC sat down with Judge Garcia on a sunny San Francisco afternoon, where he shared his approach to conflict resolution and how his family experience informs his effective mediation style.

JAG: I’m sure every attorney in my practice area knows who you are, but for everyone else, you are currently a mediator and arbitrator at JAMS. You were first appointed to municipal court in 1983 and then elevated to the superior court in 1990, where you spent the next 13 years of your career. What did it mean to be “elevated”?

JDG: Back then, we had a split trial court system, with municipal and superior courts handling different tiers of lawsuits. To get to the superior court, you could run in a contested election or be appointed. I was appointed by Gov. Deukmejian.

JAG: Where were landlord-tenant disputes litigated back then, and have you seen any changes since?

JDG: The tenant lawsuits were litigated in superior court and they still are. Most unlawful detainer evictions were litigated in municipal court (and they still are, in what is now “limited” superior court jurisdiction). What has changed is that the economic value of these cases has increased significantly.

JAG: Do you attribute that to the high cost of housing?

JDG: That’s part of it. In those lawsuits, a good tenant/plaintiff is helpful, but a bad landlord/defendant is much more lucrative. And by that, I don’t mean the landlord is evil or anything like that. But the high stakes of ownership put pressure on landlords to displace tenants, and some make serious mistakes. For instance, if a landlord represents they want to move in a family member in a large flat in the Mission, and they move in new tenants instead, that’s a big problem.

JAG: I hope everyone reading this knows the importance of good faith in attempting evictions, and that example sounds egregious. Why would someone take that risk?

JDG: Bay Area landlords come from all over the world, and what they’re accustomed to being able to do with their property is different than what they can do here. Most communities have some form of due process, but our laws go beyond that. A lot of people live here and that puts pressure on our dwindling availability of housing and the community at large. Landlords have to act differently with their tenants now.

JAG: Speaking of changing sensibilities, are there any practices from your early years on the bench that would shock our readers?

JDG: It was a very different landscape back then. The unlawful detainer summons was three days including weekends, so landlords would serve a complaint on a Friday and hope to take their defaults on a Tuesday before tenants could get counsel. The Mission legal aid clinics held Monday sessions to negotiate extension from landlord attorneys, who would demand that they file an answer (instead of a pleading challenge), bartering away their procedural rights. They were also generally quick to take a default and unwilling to stipulate to vacate one, even though the law requires judges to be liberal in setting them aside.

JAG: That’s certainly not how we practice these days! Were the abuses all one-sided?

JDG: Well, this was also before some of the other procedures in the unlawful detainer statutes were sped up. You still had the short summons and the trial setting preference, but you’d usually see serial pleading challenges. The ability of lawyers to slow down cases in those days was amazing. Unlawful detainer cases could take three years to go to trial. Some lawyers were removing unlawful detainers to federal court, to litigate Nixon-era price controls.

JAG: Seems like you’ve seen it all! In fact, to say that someone “wrote the book” is a usually metaphor about wisdom and experience. Except, in your case, you literally wrote “the purple book” – the Rutter Guide’s Landlord-Tenant Practice Guide, which every attorney in this industry regards as indispensable. How did you get involved?

JDG: [Judge] Terry Friedman was going around the state doing programs on landlord-tenant law when I was in municipal court. And because of my experience with all these cases, he asked if I would co-author. It started as a two-year project… maybe around 1983 to 1985, and then we published what is now known as the first edition. It’s been an annual project ever since.

JAG: This calls to mind your approach to mediation. Preparing for this interview, I talked to attorneys who practiced in front of you. They invariably described you as a smart, thoughtful and decisive judge – a foremost expert on landlord-tenant law and civil procedure. Why was important for you as a judge to know the law as well as the practitioners?

JDG: A judge needs to know the law for the case at hand. For the bulk of my cases on the bench, the law dictated the decision. Even in trial, I didn’t look at the facts and then pick the better side – the law had to dictate how I assessed the facts. I came to being a judge through a different path than most. I wasn’t practicing as a civil litigator, I was a law professor. I was always attracted to the intellectual side, and I felt like that was the basis upon which I had to make decisions. Trial judges are obliged to follow the law. Most trial judges have to ask, “What is the law? How does that predicate what my decision has to be in this case?”

JAG: How do you stay current on the law now that you’re off the bench?

JDG: I read the advance sheets [of newly published decisions] for changes in law, but the law has become so specialized that, as much as I know, I can’t know all the nuances. So I rely on the lawyers to brief me on the issues.

JAG: Command of the law is certainly important for decision-making, but a mediator can serve an evaluative or facilitative role. Which role do you play?

JDG: I do tend to be evaluative, and I want the parties to evaluate their own cases as they consider settlement. I hope I’m also facilitative. I try to assist the parties in focusing on where the potential for agreement is (not where it isn’t). Part of that process is understanding those risks, but ultimately, it’s up to the parties to decide. Lawyers have two major roles here. The obvious one is to advocate for the client, and that’s easy. You put on blinders, view the case in the way most favorable to your client, and fight to the bitter end for it. There’s a more important role: to be counsellors. The lawyer guides the client, and the client makes the decision with the benefit of meaningful advice. The mediation process works best where it’s collaborative. Putting aside those labels though, what I really want be viewed as is a transformative mediator: I’d like us all to have touched each other in such a way that, when we come out of the process, we’re better humans than when we started.

JAG: My industry thinks of these cases as landlord-tenant disputes, but by the time we sit down with you, there’s a third party – the insurance carrier. What challenges are involved when the carrier is a decision maker?

JDG: Without insurance, of course, the landlord has control over all aspects of settling their case, but no safety net. With insurance, there’s a party essential to resolution who is holding the purse strings. It’s exceedingly rare that the carrier says that they’re resolving their part of the case, and the landlord is left to deal with their part. More often, the carrier will get the landlord out of a mess, and the landlord will have to rethink how they do business. Still, adjustors will sometimes insist they have no skin in the game. And when you have a coverage dispute, the mediator needs to understand the lay of the land – to ascertain what the covered claims are. The carrier can make a rational decision based on what the issues are, but they can also exculpate their insured on the uncovered claims to avoid their own lawsuit, and they need to assess that.

JAG: Navigating intersecting interests must be familiar to you, as one of seven brothers. Did that influence the path you chose?

JDG: We grew up in poverty in El Paso. My father had three years of college education in Mexico before he came here, and he believed that the path to something greater was education. He wanted us to achieve and to use our station to implement justice for the community. He told us “you’re becoming lawyers” and, sure enough, five became lawyers and four of us judges.

JAG: You clearly had a great role model. Did being a good judge make you a good father? and does being a good father make you a good mediator?

JDG: I’ve become a better father as time has gone by. I’ve learned that being able to hear people and to truly understand them is important in both. Being a good parent made me a better judge, and being a good judge made me a better parent. I learned from my kids that, when you yell at me, I don’t listen, and I’ll let you know it’s not working. And when I want you to do something, I need to explain it in a way you can accept. That might sound familiar in your professional experience.

JAG: It certainly does. Thank you so much for your time, Your Honor.

*This interview first appeared in the San Francisco Apartment Association’s (SFAA) July 2024 issue of the SFAA Magazine. https://www.sfaa.org/Web/Magazine/Current-Issue