Do you interview potential mediators to determine, among other factors, their style of mediation? If so, here’s a link to an article that goes beyond the
The Illinois Uniform Mediation Act provides that, with narrow exceptions, communications in a mediation are privileged and, if the mediation agreement so provides, confidential. Since most
In Choksi v. Choksi (Tex. App. 2020), the Texas court of appeals examined the impact of the following language in a mediated settlement agreement: “This
Nearly all mediations involve parties that view the same facts in a very different light. But in a great many mediations, the parties go further:
Arbitration clauses are increasingly common in both commercial and consumer contracts, and some of those clauses now require that the parties mediate before commencing an
It is critical, at the end of a successful mediation, to secure a binding agreement to the material terms of the settlement, even if the
In Tellis v. LeBlanc, (W.D. La. 2020), in the course of litigating a motion to strike a jury demand, the defendant cited facts it had
In Homes v. Navigators Specialty Ins. Co. (E.D. Tex., 2019), the plaintiff filed a complaint, six months later the parties mediated unsuccessfully, and a week
In Ill. Tool Works, Inc. v. Ace Specialty Ins. Co., 2019 Ill. App 181945 (1st Div. 2019), the plaintiff received a letter threatening a lawsuit
Parties are increasingly including a mediation provision in their contractual arbitration clauses, requiring an aggrieved party to mediate before filing an arbitration. Although one might
Using two mediators, generally referred to as the “co-mediation,” is fairly common in community mediation organizations, but less common in commercial cases. Using two mediators
It is increasingly common for contracts, and in certain cases court orders (divorce decrees, for example), to require mediation before disputants can litigate. In K.S.
In In re Anne Elder Kershaw, No. 2018-031 (S.V.I), the Supreme Court of the Virgin Islands affirmed the denial of a motion for pro hac
The earlier a case can be settled the better. But what is the right moment to attempt a mediation? While it is good to try to mediate
It is not uncommon in a complex case for the parties to reach a settlement during a mediation, reflected in a written, signed, settlement term
In Hughes Socol Piers Resnick & Dym, Ltd. V. G3 Analytics, LLC, No. 18 C 2114 (N.D. Ill. Aug. 28, 2018), Judge Aspen affirmed an
It’s unfortunate, but not surprising, and definitely ironic, that with the increased use of mediation, people will sue for conduct that occurred during a mediation. One
In Koehn v. Tobias, 866 F.3d 750 (7th Cir. 2017), the Seventh Circuit upheld the imposition of a monetary sanction against the defendants for conduct
The facts are a bit extreme, but the legal principle is quite interesting. While plaintiff and defendant were in the middle of a California-based no-holds-barred legal
A recent ABA task force did a comprehensive review of studies examining whether the following mediation techniques were helpful or harmful: pressing or directive actions
In Chodosh v. Trotter, No. 70952-53 (Cal.App. 2017), Plaintiffs alleged that a mediator affiliated with JAMS said during a mediation that Defendant’s offer was “a gift,”
In Aung v. GEICO, MP/ 9:17-cv-856 (D.S.C. 2017), plaintiff was injured in an auto accident where the driver of the other car had very limited
Cecilia Morgan, an experienced mediator in Texas, polled 249 mediators to find out why, in their opinion, mediations fail. Here, in reverse order, is what
To ensure that a mediation ends with a binding agreement, it has been my practice as a mediator to recommend that the parties sign a
In Sanders v. The Phoenix Ins. Co., No. 15-2539 (1st Cir. 2016), an insured was aware of a potential claim, so he notified his carrier.
Most jurisdictions permit a bad faith claim against an insurance carrier that unreasonably fails to settle a claim. In Agape Senior Primary Care, Inc. v.
Binding mediation may sound like an oxymoron because the decision to settle in a mediation is supposed to be voluntary. Yet something called binding mediation is
In Beverly v. Abbott Laboratories, 15-1098 (7th Cir. 2016), the parties ended a mediation by each stating a final cash offer that would remain open for
Because a party can never be forced to settle, courts struggle with what constitutes “bad faith” in mediation. In Lea v. PNC Bank, No. 15-776
In Doe Run Resources Corp. v. Fidelity & Casualty Co., Cal.App. 2016, a policyholder notified both its primary and excess insurers of a substantial environmental
This article was also published by the American Bar Association’s Section of Litigation, Alternative Dispute Resolution Committee. In Tirreno v. The Hartford, 2015 WL 8132972 (Conn.App.
Pinske v. Allstate Property and Casualty Ins. Co., ____ (Ill.App.1st 2015), has several very interesting components. First, the parties agreed to use an alternative dispute
In Holly v. UPS Supple Chain Solutions, Inc., 2015 WL 4776904 (W.D.Ken. 2015), the parties agreed to mediate a case before a federal magistrate. The
In PNC Bank, N.A. v. Springboro Medical Arts (Ohio App. 2015), the parties concluded their mediation by signing a document that contained the “essential terms
In Billhartz v. Billhartz, 2015 IL App (5th) 130580-U, the parties ended a mediation by reaching an agreement, which was reflected in a written memorandum
Contracts are, with increasing frequency, requiring pre-dispute mediation before a complaint can be filed in arbitration or in court. In Hangartner v. Alexander, 2015 IL
Most mediation contracts include a confidentiality clause providing that all statements made and information exchanged during the mediation cannot be used for any purpose outside
In Friedlander v. Fifth Third Bank, Inc., 2014 WL 5313946 (E.D.Ky. 2014), the plaintiff brought a state court action against three defendants, only one of
This article was also published by the American Bar Association’s Section of Litigation, Alternative Dispute Resolution Committee. In Ogbuehi v. Comcast of California/Colorado/Florida/Oregon, 2014 WL 4961109
Insurance carriers are generally an essential party to a mediation, but what if they resolutely deny any coverage? Booth v. Davis, No. 10-4010 (D.Kan. 2014), was a
This article was also published by the Chicago Bar Association in the CBA Record, July/August 2014 (PDF). It’s 8:00 at night and you’ve finally settled your
The mechanics of conducting a mediation are usually left up to the parties, even if the court has ordered the mediation. Here, however, is an example
This article was also published by the American Bar Association’s Section of Litigation, Alternative Dispute Resolution Committee. Many states have statutes that create a privilege for
It is critical to nail down the scope of the contemplated release before concluding a mediation. Case in point: In Kaiser v. Trace, Inc., 2014
This article was also published by the American Bar Association’s Section of Litigation, Alternative Dispute Resolution Committee. In Miller v. Basic Research, LLC, 13-4048, 2014 WL
This article was also published by the American Bar Association’s Section of Litigation, Alternative Dispute Resolution Committee. In The McCaffrey Group, Inc. v. Superior Court, 2014
It is hard to have a successful mediation if one side feels it is missing information necessary to fully assess the case. Because mediation is
This article was also published by the American Bar Association’s Section of Litigation, Alternative Dispute Resolution Committee. In Pales v. Carrillo, 2013 IL App (1st) 123107-U
I’ve noted in the past that many contracts now require, in addition to arbitration, that the parties first mediate their dispute. Many courts have upheld
Two cases on the same issue. In Olson v. Desserts on the Blvd., LLC, 2013 WL 5446922 (E.D.Mo. 2013), defendants opposed a motion to amend a complaint,
This article was also published by the American Bar Association’s Section of Litigation, Alternative Dispute Resolution Committee. In Minkowitz v. Israeli, A-2335-11T2, 2013 WL 5336454 (N.J.
The American Arbitration Association has adopted new rules for commercial arbitration effective October 1, 2013. They include a requirement that there shall be a mediation
When court approval of a settlement is required, litigants frequently use mediation to negotiate the settlement, because if successful, the mediator can then provide assistance
This article was also published by the American Bar Association’s Section of Litigation, Alternative Dispute Resolution Committee. In Benes v. A.B. Data, Ltd., 2013 WL 3838112
This article was originally published by the Illinois State Bar Association’s Illinois Bar Journal. While mediation is supposed to help avoid litigation, the parties sometimes
Don’t smirk at the facts. Really. There is an interesting legal issue here. THI of New Mexico at Valle Norte v. Harvey, 2013 WL 235349
This article was also published by the American Bar Association’s Section of Litigation, Alternative Dispute Resolution Committee. It is increasingly common to find arbitration clauses that
This article was also published by the American Bar Association’s Section of Litigation, Alternative Dispute Resolution Committee. There is a large and well-developed body of law
This article was also published by the American Bar Association’s Section of Litigation, Alternative Dispute Resolution Committee. While mediation is intended to end disputes, there are
In Richard v. Spradlin, 2013 WL 1571059 (E.D.Ky. 2013), the mediation failed, and the court knew just who to blame. The defendant was sanctioned for
I recently reported on a decision in which a defendant argued that a prevailing plaintiff’s statutory fee award should be limited based on the fact
The American Arbitration Association has a new clause builder tool that will construct a sample contractual provision requiring both mediation and arbitration, or just arbitration,
This article was also published by the American Bar Association’s Section of Litigation, Alternative Dispute Resolution Committee. In Fogh v. Los Angeles Film Schools, 2012 WL
Based on a number of recent cases, it seems that more and more parties are putting a mediation requirement into their arbitration clauses. Such mediation
Is paying the mediator the lawyer’s responsibility, the client’s, or both? Many mediation agreements are surprisingly vague on this, stating only that the “parties” shall
There are an increasing number of reported cases in which the parties end up fighting about what occurred in a mediation. These disputes include whether
A successful mediation usually results in a list of the material terms of a settlement, with the formal papers to be drafted at a later
In a dispute arising out of two suppliers of Solyndra (the high-flying alternative energy company whose bankruptcy made headlines), the parties’ contract required that any
Although the facts need to be severe, courts have gone as far as dismissing lawsuits for mediation misconduct. In Hand v. Walnut Valley Sailing Club,
It is always recommended that you have signed agreement at the end of a mediation, even if the agreement is only a term sheet, subject
Jonah Orlofsky will be speaking to the Chicago Bar Association’s Alternate Dispute Resolution Committee on May 3, 2012. The topic will whether law firms should include
On a personal note, I continue to be involved in the resolution of many attorney-client disputes, and have recently published an article on whether retainer
Most lawyers think of mediation as a means of settling a lawsuit. However, a committee of judges and lawyers appointed by Law Division Judge William
The court are generally agreed that as long as the basic terms are in writing, there is no need for a complete settlement agreement. In
In McGinley v. Florida, 2010 WL 5421320 (M.D.Fla. 2010), the prevailing party sought to include mediation costs as taxable costs recoverable under 28 U.S.C. §
It may seem obvious, but don’t rely on any facts and figures or other information provided during a mediation. In The Facebook, Inc. v. Connectu,