Orlofsky ADR Services

Do You Interview Potential Mediators? If So, Here’s A Helpful Resource.

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 overly simplistic “evaluative” and “facilitative” categories to examine some of the different approaches mediators can take: https://www.mediate.com/articles/lande-unified-conceptual.cfm. The article is short, on point, and might give you some ideas for how to… Continue reading Do You Interview Potential Mediators? If So, Here’s A Helpful Resource.

Are Your Mediation Communications Confidential?

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 mediation agreements provide that all mediation communications are confidential, it would appear that, on the surface, comments made in a mediation are protected against most attempts to use them outside… Continue reading Are Your Mediation Communications Confidential?

Do You Need This Language in Your Mediated Settlement Agreement?

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 binding mediated settlement agreement is not subject to revocation and is not appealable.” The parties no doubt inserted this language in an effort to thwart a “buyer’s remorse” situation where… Continue reading Do You Need This Language in Your Mediated Settlement Agreement?

What To Do When Parties Attribute Bad Faith Motives To Each Other

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:  they are convinced the other side is not taking its position in good faith, but rather is knowingly lying or engaging in some nefarious scheme.  It is, for example, all… Continue reading What To Do When Parties Attribute Bad Faith Motives To Each Other

A New Twist on a Contractual Mediation Requirement

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 arbitration.  Such a clause can be beneficial because, while parties all know the advantages of an early settlement, many litigators view an early request for mediation as tantamount to an… Continue reading A New Twist on a Contractual Mediation Requirement

Securing Binding Mediation Agreements in a Virtual World

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 parties intend to later draft a more formal document. This is typically done by having the parties agree to a settlement term sheet. What you want to avoid is creating any delay… Continue reading Securing Binding Mediation Agreements in a Virtual World

Enforcing a Mediation Confidentiality Provision

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 learned in a prior unsuccessful mediation about the nature of the plaintiff’s case. The plaintiff moved for sanctions based on defendant’s use of that information because the communications in the mediation… Continue reading Enforcing a Mediation Confidentiality Provision

What Can You Do With New Facts Learned In Mediation?

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 later the plaintiff sought to amend the complaint to add new parties.  The court denied the motion to amend in part because the plaintiff delayed seven months before seeking to amend… Continue reading What Can You Do With New Facts Learned In Mediation?

Is A Mediation A “Lawsuit?”

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 (a copy of a proposed complaint was attached), but inviting the plaintiff to participate in a mediation to resolve the matter. The plaintiff accepted the invitation and the matter settled.… Continue reading Is A Mediation A “Lawsuit?”

Require Mediation Before Arbitration

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 wonder about the success rate of mediations that take place when a party is forced to do so by contract, any settlements achieved so early in the process result in… Continue reading Require Mediation Before Arbitration