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 in a commercial case is more likely an option in larger value cases that justify the cost of hiring two mediators, but if all parties can agree to use that… Continue reading Does It Make Sense To Use 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. v. J.S., No. A-4321-17T2 (N.J. App., 2019), a divorce decree required the parties to mediate before bringing an action alleging a breach of the decree. When the defendant demanded that… Continue reading Fulfilling a Requirement to Mediate
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 vice admission based on the following facts. The non-Virgin Islands counsel in question filed a motion in the trial court to be admitted pro hac vice that was granted, but… Continue reading Do You Need Pro Hac Vice Admission to Represent a Client in Mediation?
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 as early as possible, some mediations fail because the parties find out they were not yet ready to have a meaningful settlement discussion. Guided Choice is a process where the… Continue reading Guided Choice Dispute Resolution – A New Approach That Might Boost A Mediation’s Chances Of Success
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 sheet, but also intend to later draft and sign a more formal and comprehensive document. The law is clear that if the agreement reached during the mediation includes all the “material”… Continue reading Making Sure Your Mediation Settlement Is Binding
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 arbitration award where the parties’ contract contained the following alternative dispute resolution clause: Any disputes relating to this Agreement . . . will be resolved by alternate dispute resolution. Alternative… Continue reading An Interesting Mediation Clause
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 recent example is Doe v. JAMS Inc., (2nd Cir. 2018), in which a partner in a prominent New York law firm sued for discrimination and retaliation and included an allegation… Continue reading Litigation Arising Out of Mediation
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 in a mediation, even though Defendants prevailed at trial. Here’s what happened: Round One: In a mediation before the Magistrate Judge, Defendants made a final offer of $75,000. Plaintiff rejected… Continue reading Sanctionable Bad Faith In A Court-Run Mediation
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 battle, plaintiff reported defendant to criminal authorities in Oregon, which led to the issuance of an arrest warrant in Oregon. The Oregon police, however, were reluctant to arrest the defendant in… Continue reading Sabotaging Mediation Constitutes “Unclean Hands”
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 or approaches; offering recommendations, suggestions, evaluations, or opinions; eliciting disputants’ suggestions or solutions; addressing disputants’ emotions, relationships, or hostility; working to build rapport and trust, expressing empathy, structuring the agenda,… Continue reading What Are the Best Techniques a Mediator Can Use?