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 five-year-old case, after a long and arduous day of mediation. In a perfect world, the parties would complete a full settlement agreement and be done with the case. Full settlement… Continue reading Making Sure a Mediated Settlement Is Binding
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 of a Court entering an order providing a specific set of procedures relating to the mediation, including a pre-mediation exchange of information, and requiring the parties to agree upon a… Continue reading Court Structured Mediation
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 mediation communications. There is no parallel federal statute, and federal courts have declined to create a federal common law privilege for mediation communications. Consequently, it is fairly well settled that… Continue reading Federal Law Governs The Mediation Privilege In Federal Court Even When State Claims Are Involved
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 WL 1745419 (D.Idaho 2014), the parties reached an oral settlement of an employment discrimination case in a mediation, but did not write anything up. A follow-up email memorializing the terms… Continue reading Failure To Nail Down Scope Of Release Negates A Mediated Settlement
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 1778046 (10th Cir. May 6, 2014), the parties mediated a class-action lawsuit. At the conclusion of several mediation sessions, they informed the court that the mediation had been successful and… Continue reading Question on Mediated Settlement Not Appropriate Issue for Interlocutory Appeal
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 WL 1153392 (5th Dist. Cal. 2014), the homeowners sought to sue a builder for alleged construction defects. The construction contract required a number of pre-litigation dispute resolution mechanisms, including mediation, and… Continue reading Mediation Agreement Not Unconscionable
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 generally a voluntary process, however, any pre-mediation exchange of information is generally left up to the parties, with (hopefully) the guidance of the mediator. In Selective Way Insurance Company v.… Continue reading Mandatory Discovery Prior to a Voluntary Mediation?
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 (Dec. 12, 2013) (unpublished order), the Illinois Appellate Court addressed the rare issue of the viability of a claim against a mediator by a disappointed litigant. The plaintiff hired the… Continue reading Illinois Court Dismisses Claim Against Mediator, But Implies That Valid Claim Exists
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 such a clause, either dismissing or staying a lawsuit filed where the plaintiff failed to first request mediation. The problem with the court enforcement, however, is that, while it forces… Continue reading Putting Some Teeth In A Contractual Mediation Requirement
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, arguing plaintiffs waited too long to amend. Defendants relied in large part on the fact that plaintiffs allegedly [had] learned the facts necessary to amend the complaint in a mediation… Continue reading Are there consequences to learning new facts during mediation?