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,” and if Plaintiff did not accept, the mediator would report to the judge presiding over the case that Plaintiff was the reason for the failure to settle. Plaintiffs further alleged… Continue reading Can You Sue a Mediator?
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 insurance. Plaintiff obtained a judgment against the other driver for over $500,000, but GEICO, her underinsured motorist carrier, paid only $50,000 of that judgment. Plaintiff sued both GEICO and the… Continue reading Can Conduct In a Mediation Be Tortious?
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 they said (read the full article on Why Mediations Fail): 13. Third-party interference. 12. Lack of money to pay. 11. Parties that want to go to court to tell their… Continue reading Why Mediations Fail
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 term sheet specifically stating that it contains “all the material terms of the agreement and is a binding contract,” even though the parties intend to later draft a more formal… Continue reading Do You Need An “Integrated” Agreement At The End Of A Mediation?
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. Although no lawsuit had been filed, the insured agreed to mediate the potential claim and invited his carrier to attend the mediation. The carrier refused to attend, and then denied… Continue reading Court Holds That A Mediation Is Not A “Suit.”
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. Evanston Insurance Company, No. 3:16-cv-1610 (D.S.C. 2016), the plaintiff alleged that its insurer committed bad faith by failing to send a representative with full settlement authority to a mediation. The… Continue reading Can an Insurer Commit Bad Faith in a Mediation?
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 a growing alternative dispute resolution mechanism. The general concept is that the parties attempt to resolve their dispute with the assistance of a mediator, but if they are unable to do… Continue reading What is Binding Mediation?
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 a few more days. Before the deadline, the defendant accepted the plaintiff’s final offer, but when the defendant later tendered a complete settlement agreement, the plaintiff refused to sign. The… Continue reading Seventh Circuit Addresses The Binding Nature of Mediation Agreements
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 (W.D. Pa. 2016), after the court ordered mediation, Defendant’s counsel told Plaintiff’s counsel that the mediation would be more productive if Plaintiff made a demand before the session. Plaintiff complied,… Continue reading Another Look At What Constitutes Bad Faith In Mediation
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 class action. The primary insurer defended, and the excess insurer was kept apprised of the status. When mediation was scheduled, the policyholder notified the excess insurer that there was going… Continue reading Do You Need an Excess Insurer at a Mediation?